Estate of Late Moses Masese (Represented by Oliver Masomera in his capacity as the Executor Dative of the Estate Late Moses Masese) v Luke Mapako and Others

Moses Masese died in February 2005, leaving an estate that included Stand 972 Tshovani, Chiredzi, registered in his name. Oliver Masomera was appointed Executor Dative. The first defendant (Luke Mapako) claimed he purchased the property from the deceased in January 2005 pursuant to a verbal agreement for ZW$200 million, paying ZW$100 million to the deceased and the balance to the deceased's widow (Mrs. Masese) after the deceased's death. After the deceased's death, the second defendant (Fidelis Masese, the deceased's son) entered into a written agreement of sale with Mapako in which Fidelis purported to sell the property. The executor discovered this transaction and called a family meeting where all beneficiaries (including Mrs. Masese) agreed the written agreement was illegal and agreed to a redistribution plan. Mapako had occupied the property since 2005, made improvements, and paid utility bills. The estate sought cancellation of the agreement, eviction, payment of rentals of $25,800, and holding over damages. Mapako counterclaimed for transfer of the property.

• Whether the first defendant purchased Stand 972 Tshovani from the deceased Moses Masese pursuant to a verbal agreement
• Whether the written agreement of sale between the first and second defendants was valid
• Whether the first defendant should pay rentals and/or holding over damages in respect of the property
• The quantum of damages and/or rentals to be paid by the first defendant
• What order should be made as to costs

1. The agreement of sale between first and second defendants cancelled; 2. Eviction of first defendant, his officials, agents, assigns and all those claiming occupation through him granted; 3. Claim for rentals of $25,800 dismissed; 4. Holding over damages from 1 April 2016 to date of eviction at $300 per month granted; 5. Claim for transfer of Stand 972 Tshovani to first defendant dismissed; 6. First defendant to pay costs on a legal practitioner-client scale.

1. A void agreement does not create any rights between the parties and the court cannot enforce any rights in respect thereof. Parties revert to the status quo ante. 2. Only an executor has the legal capacity to represent and deal with a deceased estate (per Fischer v Liquidators of the Union Bank). 3. An agreement purporting to sell estate property entered into by a person who is not the owner or authorized representative of the estate is void ab initio. 4. Under Section 42 of the Administration of Estates Act, a person holding estate property is obliged to deliver it to the executor or, in the absence of one, report particulars to the Master. Failure to do so results in liability for all dues payable. 5. A person claiming rights against a deceased estate must follow the statutory procedures set out in the Administration of Estates Act, including lodging claims with the executor (Section 47) or registering as a creditor (Section 5), rather than approaching the court directly for relief.

The court observed that the law does not protect the sluggard but protects the vigilant, criticizing Mapako's failure to protect his alleged rights timeously. The court also commented that legal practitioners are expected to advise clients in line with the law and not assist them to circumvent it, and that the court cannot accept besmirchment of legal officials without proof. The court noted that had Mapako been vigilant in lodging an objection or claim through proper channels, his claim could have been properly considered. The court also made observations about the checks and balances in estate administration, noting that Section 52(8) of the Act allows beneficiaries to object to redistribution plans. The court commented on the validity of the redistribution plan under Section 68D of the Act, finding that the executor properly consulted the family and beneficiaries as required by subsection (2), and that the section does not give the executor carte blanche to distribute property as he deems fit but requires compliance with law and family input.

This case reinforces fundamental principles of estate administration law in Zimbabwe/South Africa, particularly: (1) the principle established in Fischer v Liquidators of the Union Bank that only an executor can deal with a deceased estate; (2) the consequences of void versus cancelled agreements as set out in Malunga v Wade; (3) the duty of persons holding estate property under Section 42 of the Administration of Estates Act to deliver it to the executor; (4) the importance of following statutory procedures for lodging claims against estates rather than approaching the court directly; and (5) that agreements purporting to dispose of estate property by unauthorized persons are void ab initio and create no rights. The case serves as a warning about the importance of reducing agreements to writing contemporaneously and following proper legal procedures when dealing with deceased estates.