Hilda Salila and Maria Salila v Gerry Munyaradzi Salila N.O and Others

The first respondent was appointed executor dative of the estate of the late Reginald Tswakai Griffin Salila, who was married according to customary law and survived by six children, including the applicants. Stand number 20 Creil Road, Southdowns, Gweru was included in the estate's inventory. In 2000, the first respondent allocated the property to the second respondent and had it transferred to him. No First and Final Administration Account and Distribution Plan was lodged with the Master as required. Letters of administration were issued on 17 December 1999, but the estate remained unwound. The property was subsequently sold to the fifth and sixth respondents on 31 March 2007, after which they were joined to the proceedings. The applicants sought to have the transfer declared null and void. The fifth and sixth respondents claimed to be innocent purchasers and raised a defense of prescription.

• Whether the transfer of immovable property from a deceased estate without following prescribed procedures (including lodging an inheritance plan and obtaining the Master's approval) is null and void
• Whether an executor dative of an estate governed by customary law can distribute estate property without lodging an inheritance plan under section 68D and obtaining the Master's approval under section 68E of the Administration of Estates Act
• Whether the applicants' claim had prescribed in terms of section 16 of the Prescription Act
• Whether the fifth and sixth respondents acquired valid rights as purchasers despite irregularities in the estate administration

1. The allocation and transfer of stand 2723 Gwelo Township also known as house no. 20 Creil Road, Southdowns, Gweru to the second respondent under deed of transfer No. 2050/00 is declared null and void. 2. The first respondent shall draft and lodge an inheritance plan in respect of the estate of the late Reginald Tswakai Griffin Salila with the third respondent (Master) within seven days of service of the order. 3. No order as to costs.

Distribution of estate property governed by customary law without lodging an inheritance plan with the Master and obtaining the Master's approval as required by sections 68D and 68E of the Administration of Estates Act is null and void. An executor's powers are limited to those conferred by the Act or by the Master, and any distribution without following prescribed procedures has no legal effect. In prescription matters, the party raising prescription bears the onus of proving when the creditor became aware or should have become aware of the facts giving rise to the debt/cause of action. A deceased estate has no legal personality and cannot hold property in its own name.

The court noted that the appointment of the first respondent as heir is symbolical and cannot affect the interests of other beneficiaries to the estate. The court also discussed the application of the discovery/knowledge rule in prescription cases, referencing international jurisprudence including California cases (Jolly v Eli Lilly and Ward v City of Alliance) to illustrate that discovery entails knowledge of the injury and causation, and that plaintiffs need not be aware of actionability or wrongdoing at the level of certainty for a claim to accrue. The court emphasized that prescription should be determined objectively based on what information the injured party knows or should know, applying a flexible rather than rigid test.

This case is significant in Zimbabwean law for establishing that the distribution of a deceased estate governed by customary law without following prescribed statutory procedures renders such distribution null and void. It reinforces the mandatory nature of the requirements under the Administration of Estates Act, particularly sections 68D and 68E, which require an inheritance plan to be drawn up and approved by the Master before distribution. The case also clarifies the application of the discovery/knowledge rule in prescription matters, requiring defendants who raise prescription to prove when the plaintiff became aware or should have become aware of the facts giving rise to the cause of action. It demonstrates that even innocent purchasers cannot acquire valid title to property irregularly transferred from an unadministered estate.