File Nyoni v Likumbi Kalipa N.O. (Executor estate Philimon Kalipa Khumalo) and Others

On 21 September 2016, the applicant and 1st respondent (executor of the estate of Philimon Kalipa Khumalo) signed an agreement of sale for immovable property being house number 1046 Chinotimba Township, Victoria Falls. The written agreement stated a purchase price of US$7,500.00, though the applicant averred he paid US$10,310.00 (including amenities bill clearance), while the 1st respondent claimed only US$3,000.00 was paid. The property was estate property. On 2 November 2016, the Resident Magistrate at Victoria Falls granted the executrix authority to sell the property in terms of section 120 of the Administration of Estates Act. The applicant filed this application seeking specific performance to compel transfer of the property. The 1st respondent opposed the application, alleging misrepresentations and that the sale agreement was void for non-compliance with section 120 of the Act.

• Whether non-compliance with Rule 248(1) of the High Court Rules, 1971 (requiring service on the Master) rendered the application fatally defective
• Whether the sale agreement was null and void for non-compliance with section 120 of the Administration of Estates Act
• Whether section 120 authority from the Master must precede or can follow a private sale of estate property
• Whether there were material disputes of fact precluding determination in motion proceedings

1. The point in limine in respect of non-compliance with section 120 of the Administration of Estates Act [Chapter 6:01] is upheld. 2. The application is dismissed with costs of suit.

Section 120 of the Administration of Estates Act requires the Master's consent as a condition precedent to the sale of estate property by private treaty. The Master must conduct a due inquiry and grant authority BEFORE the sale takes place. A sale agreement entered into without prior section 120 authority is invalid, unlawful and a nullity. Seeking authority ex post facto the sale is not in compliance with section 120 of the Act and defeats the empowering provision. Non-compliance with Rule 248(1) of the High Court Rules (requiring service on the Master) does not render the application itself fatally defective, but relates to whether the court may proceed to hearing without such service having been effected.

The court made observations regarding the conduct of legal practitioner Mr. V.J. Mpofu, who attempted to make submissions as a "friend of the court" from the public gallery without following proper procedure for admission as amicus curiae. The court noted that serious allegations had been made against him by the 1st respondent, which he had not addressed. The court also clarified the distinction between recusal (a function of judicial office) and withdrawal (applicable to legal practitioners), noting that a legal practitioner does not "recuse" himself but rather withdraws from a case. The court also noted that it adopted a holistic approach to the preliminary points, allowing them to be argued together with the merits while retaining the ability to dispose of the matter solely on the preliminary points.

This case is significant in Zimbabwean law as it clarifies the mandatory and temporal requirements of section 120 of the Administration of Estates Act. It establishes that when estate property is to be sold by private treaty (rather than by public auction), the Master's consent must be obtained BEFORE the sale, not after. The decision reinforces the protective function of section 120, which requires the Master to conduct due inquiry to ensure that private sales are to the advantage of persons interested in the estate. It confirms that retrospective compliance is insufficient and that a sale conducted without prior authority is void ab initio. The judgment also addresses procedural matters regarding service on the Master under Rule 248(1) of the High Court Rules.