Joana Chitiga and Others v Elizabeth Diana Matsikidze and Others

The late Sinai Alias Zinai died intestate in 1972. His estate remained dormant for 44 years until 2016 when his paternal granddaughter, Elizabeth Diana Matsikidze (1st respondent), registered it with the Assistant Master at Bulawayo (DRB 1087/16). She was appointed executrix dative and declared sole beneficiary. Similarly, 1st respondent registered and administered the estate of her father Lucas Matsikidze (who died in 1991) under WE 189/2015, again being declared sole beneficiary. The sole asset in both estates was a farm (Holding Mshagashe 235) left by the late Zinai. The 1st respondent sold the farm to Chiwora Investment Trust (2nd respondent) for US$90,000 prior to winding up Zinai's estate. Five applicants—claiming to be daughters and granddaughters of the late Zinai—alleged they were fraudulently excluded from the estate administration process. They sought to have both estates re-opened, the 1st respondent removed as executrix, the distribution accounts set aside, and the sale and transfer of the farm to the 2nd respondent cancelled.

• Whether the citation of the 1st respondent in her capacity as executrix dative of estates that had been wound up rendered the application fatally defective
• Whether a trust has legal personality and locus standi to be cited as a party to legal proceedings under Zimbabwean law
• Whether there were material disputes of fact that could not be resolved on the papers without leading oral evidence
• Whether the exclusion of potential beneficiaries from estate administration constituted fraud warranting re-opening of deceased estates

The matter was referred to trial. The papers filed of record were ordered to stand as pleadings. The matter was to be set down for trial as directed by the court. Costs were ordered to be in the cause.

1. An executor is the representative of a deceased estate and must be cited in that representative capacity in legal proceedings concerning the estate, even after the executor has filed accounts, distributed assets, and been discharged. 2. While trusts lack legal personality at common law, Order 2 Rules 7 and 8 of the High Court Rules 1971 (now carried forward to the High Court Rules 2021) permit trusts to be cited as parties and to sue or be sued in the name of the association, thereby modifying the common law position and granting trusts locus standi for procedural purposes. 3. Material disputes of fact arise when material allegations are disputed and traversed in such a manner as to leave the court with no ready answer in the absence of further evidence. When such disputes cannot be resolved on the papers and do not warrant dismissal, the matter should be referred to trial with the application papers standing as pleadings.

The court observed that the estates of both Sinai Alias Zinai and Lucas Matsikidze remained dormant for considerable periods (44 years and 24 years respectively) before being registered, which was unusual. The court also noted the mirror-like nature of the two estate administrations, both registered by the same person who appointed herself executrix and sole beneficiary in both instances. While not deciding the fraud allegations, the court implicitly recognized the serious nature of the applicants' allegations that they were deliberately and fraudulently excluded from the estate administration process despite the 1st respondent's knowledge of their existence and potential entitlement. The court also provided guidance on the various options available when material disputes of fact arise in application proceedings, citing Musevenzo v Beji & Anor HH 26-13.

This case clarifies important procedural matters in Zimbabwean law: (1) it confirms that executors of deceased estates must be cited in their representative capacity even after estates have been wound up and they have been discharged; (2) it reaffirms that the High Court Rules permit trusts to be cited as parties to legal proceedings despite their lack of legal personality at common law, modifying the common law position for purposes of locus standi; (3) it illustrates the court's approach to material disputes of fact in application proceedings and the circumstances in which matters should be referred to trial rather than decided on the papers. The case also highlights issues around potential fraud in estate administration and the exclusion of potential beneficiaries from the winding up process.