Estate Late Willard Mwayera v Horlodge Investments (Pvt) Ltd and Others

Willard Mwayera died on 9 November 2001, owning Stand Number 4075/6 Stones Shopping Centre Old Highfield, Harare. His estate was registered under DR 3888/01 in November 2001. The estate was subsequently re-registered by Enara Mwayera, who was appointed executrix. After her death on 10 July 2008, Oswell Mwayera was appointed executor but was later removed by court order on 5 June 2007. Fanuel Mwayera was then appointed executor on 21 April 2009. In 2004, the first respondent concluded an agreement of sale to purchase the property from Oswell Mwayera and Willard Mwayera (who was already deceased at the time). The agreement was only executed by Oswell Mwayera and Joseph Magashu (representing the first respondent). Oswell Mwayera did not describe himself as executor, and the first respondent was unaware that Willard Mwayera was deceased. Oswell Mwayera did not seek or obtain the Master's consent to dispose of the property. The estate sought to recover the property and challenged the validity of the sale.

• Whether a deceased estate has legal standing to sue in its own name without being represented by an executor
• Whether the agreement of sale in respect of the property between the first respondent and Oswell Mwayera and Willard Mwayera (who was deceased) was valid
• Whether the estate was entitled to recover the property in terms of section 42 of the Administration of Estates Act
• Whether the first respondent was a bona fide purchaser
• Whether the disposal of estate property without the Master's consent is valid

The application was dismissed with each party bearing its own costs.

A deceased estate is not a legal persona and cannot sue or be sued in its own name. A deceased estate must be represented by an executor or executrix duly appointed with letters of administration by the Master in terms of section 25 of the Administration of Deceased Estates Act [Chapter 6:01]. Only the executor can sue and be sued for and on behalf of a deceased estate. Where proceedings are instituted by a deceased estate in its own name without proper representation by an executor, the proceedings are null and void ab initio and must be dismissed. The incorrect citation of a deceased estate as a party is a fatal irregularity that goes to the root of the application.

The court noted that parties had filed a stated case requesting determination of several substantive issues relating to the validity of the sale agreement, the estate's entitlement to recover property under section 42 of the Administration of Estates Act, whether the purchaser was bona fide, and whether disposal of estate property without the Master's consent is valid. However, the court did not address these substantive issues due to the fatal procedural defect. The court also observed that where a critical point of law is not raised by the respondents but goes to the root of the matter, it is fair and just to depart from the general rule that costs follow the outcome and order each party to bear its own costs.

This case reinforces the fundamental principle in South African and Zimbabwean law that a deceased estate lacks legal personality and cannot sue or be sued in its own name. It emphasizes the mandatory requirement that all legal proceedings involving a deceased estate must be brought by or against a duly appointed executor or executrix. The case highlights that incorrect citation of a deceased estate is a fatal irregularity that goes to the root of the matter and renders proceedings null and void ab initio. The judgment serves as an important reminder to legal practitioners to ensure proper citation of parties, particularly in matters involving deceased estates, and confirms that courts will raise such irregularities mero motu (of their own accord) even where the opposing party fails to do so.