Joshua Mabhiza v Rosemary Nemhara and Others

On 13 November 2000, Richard Nemhara, as Executor of the Estate of Tapera Emmanuel Nemhara (deceased), assisted by Oscar Ziweni (Legal Practitioner), sold Stand 171 Smuts Road, Prospect, Waterfalls, Harare (measuring 2.3053 hectares) to the applicant for $1.5 million (old Zimbabwe Dollar currency). The purchase price was to be paid through a deposit of $800,000 and monthly instalments of $75,000 until the balance of $700,000 was liquidated. The applicant paid the full purchase price, with the last payment made on 30 November 2001, and also paid transfer fees of $167,500. Despite full payment, the property was not transferred. The applicant learned that the executors intended to sell the property to another person for $3.5 million. The applicant obtained a provisional order on 18 January 2002 for specific performance. Both Richard Nemhara and Oscar Ziweni (who were co-executors) subsequently passed away, as did successor executor Matilda Nemhara. Rosemary Nemhara became the current Executrix Dative. On 20 November 2013, Tsanga J granted a default order amending the final order, but this was declared null and void by Ndewere J on 30 July 2015 as it had been issued against deceased parties.

• Whether the sale agreement of 13 November 2000 was valid and binding
• Whether the provisional order should be confirmed granting specific performance
• Whether the applicant was barred from proceeding due to delay in filing heads of argument by the respondent
• Whether the matter was properly before the court given the previous order by Tsanga J
• Whether the sale violated sections 120 and 122 of the Administration of Estates Act [Chapter 6:02] due to involvement of minor beneficiaries

The court confirmed the provisional order and granted final relief as follows: (1) The 1st respondent to sign all documents necessary for transfer of Stand 171 Prospect from Emmanuel Tapera Nemhara to Joshua Mabhiza; (2) Failing that, the Sheriff of Zimbabwe or deputy authorized to sign transfer documents; (3) The Registrar of Deeds ordered to accept documents signed by either the 1st respondent or the Sheriff; (4) The 1st respondent to pay costs of the application; and (5) Applicant's lawyers to handle the conveyancing/transfer.

Where a valid sale agreement has been entered into by properly appointed co-executors with the Master's consent, and the purchaser has fully performed their obligations by paying the full purchase price and transfer fees, the purchaser is entitled to specific performance of the agreement despite subsequent changes in executors and objections raised by beneficiaries. A court order declared null and void need not be separately rescinded, as the declaration of nullity itself places parties back to their original position. New legal grounds for opposing specific performance that were not raised in original opposing affidavits and that contradict positions taken by the original parties to the transaction will not be entertained, particularly where the transaction was properly supervised by co-executors and approved by the Master.

The court observed that it would be inequitable to allow executors or their successors to distance themselves from a properly concluded sale agreement merely because property values had increased significantly (from $1.5 million to $3.5 million). The court also noted that the Administration of Estates Act provides its own remedies where a Master's decision is unacceptable, and those remedies should be pursued rather than attempting to void a transaction after the fact. The court commented that a self-actor (litigant in person) is under no obligation to file heads of argument under the rules, and requesting legal practitioners to file heads at short notice to assist the court should not result in a bar being raised against them.

This case demonstrates the Zimbabwean courts' approach to enforcing specific performance of sale agreements involving estate property where the purchaser has fully performed their obligations. It clarifies that once a nullity has been declared by a court, there is no further need to seek rescission of that null order. The case also illustrates the importance of proper estate administration and that executors acting jointly with Master's consent can validly dispose of estate property. It reinforces the principle that parties cannot resile from valid agreements merely because property values have increased, and that new legal objections raised for the first time after multiple changes in executors will not be entertained where the original transaction was properly supervised and consented to by the Master.