Joyce Chagadura v Shelly Antonio and Regis Muveregi and Director of Housing City of Harare and The Sheriff of the High Court

The plaintiff was married to the late Vito Bhero under customary law in 1983, with whom she had five children. The deceased died intestate on 15 January 2004. Prior to marrying the plaintiff, the deceased was married to the first defendant in terms of the African Marriages Act on 4 December 1972, and that marriage was never dissolved. After the deceased's death, the first defendant was appointed executor of the estate. She transferred the only immovable property (stand 32 Manga Street, New Mabvuku) into her own name and subsequently sold it to the second defendant for $40 million. The second defendant then sought to evict the plaintiff and her children from the property. The plaintiff claimed the first defendant had been divorced in 1976 but could not produce the divorce order, claiming it was destroyed in a fire in 2001. Evidence showed the plaintiff had been living at the property with the deceased, while the first defendant lived elsewhere, though the registered marriage remained valid.

• Whether the marriage between the first defendant and the deceased was dissolved prior to his death
• Whether the first defendant, as executor, complied with the requirements of the Administration of Estates Act [Cap 6:01] in transferring and selling estate property
• Whether the second defendant was an innocent and bona fide purchaser for value
• Whether the sale of the property should be set aside

1. The cession of stand 32 Manga Street New Mabvuku from the name of the late Vito Bhero to the first defendant is hereby set aside. 2. It is declared that the agreement of sale entered into by the first and second defendants is null and void. 3. The first defendant shall pay the costs of suit.

1. An executor appointed under the Administration of Estates Act occupies a fiduciary position and must act in accordance with the law, not merely in good faith. 2. Sections 68D and 68E of the Administration of Estates Act are mandatory and require an executor to draw up an inheritance plan in consultation with all beneficiaries for the Master's consideration and approval before distributing estate property. 3. Mere appointment as executor does not grant the right to transfer estate property into the executor's personal name. 4. A transfer of estate property from the deceased's name to the executor's name without compliance with statutory requirements and the Master's approval is fraudulent and void. 5. A sale of estate property conducted in violation of the Administration of Estates Act is null and void, and need not be tested against the bona fides of the purchaser. 6. Where a deceased was married to multiple wives under customary law and the marriages were not dissolved, all surviving spouses are beneficiaries entitled to participate in the distribution of the estate.

The court observed that while the usual practice in deceased estate cases is to award costs against the estate, doing so in this case would cause undue hardship given that the first defendant abused her position as executor to unjustly enrich herself at the expense of the plaintiff, and therefore should be personally punished with costs. The court also noted that no costs were awarded against the second defendant despite the plaintiff's success, implicitly recognizing that he was not the primary wrongdoer in the fraudulent scheme.

This case is significant in Zimbabwean succession law as it reinforces the mandatory nature of compliance with the Administration of Estates Act, particularly sections 68D and 68E, which require executors to prepare inheritance plans in consultation with beneficiaries for the Master's approval before distributing estate property. It establishes that an executor occupies a fiduciary position and must act not only in good faith but also in accordance with the law. The case demonstrates that transfers of estate property made in violation of statutory requirements are void ab initio, and subsequent sales of such property are nullities regardless of the purchaser's good faith. It also illustrates the court's protection of the rights of surviving spouses in polygamous customary law marriages and the consequences of executors abusing their positions to unjustly enrich themselves at the expense of other beneficiaries.