Julia Ndemera and Cosmas Ndemera v Siphelile Moyo and Tafadzwa Chitate and The Deputy Sheriff N O

On 9 April 2008, the two applicants entered into an agreement of sale with the first respondent (Siphelile Moyo) for stand number 2700 Glen Norah A, Harare. They paid the purchase price and had the stand ceded into their names. When they sought to take occupation on 14 April 2008, they found the property occupied by the second respondent and others who refused to vacate. The first respondent had been married to the late Clement Chitate but was chased away in 1975 or 1982 and never returned. Clement Chitate then took on Evernice Rocky as wife and had three children, including the second respondent born in December 1985. Clement Chitate died on 14 May 1992. Jeremiah Bernard Chitate was appointed executor dative of the estate on 5 August 1993 in DR 272/93. However, on 7 April 2008, the first respondent obtained a Certificate of Authority under s 33(b) of the Administration of Estates Act to effect transfer of the property to herself as surviving spouse (DR 209/08). Two days later, she sold the property to the applicants. The Master of the High Court subsequently revoked the first respondent's certificate of authority, stating she had misrepresented information and that the estate was already registered in 1993 with an executor appointed.

• Whether the first respondent's certificate of authority issued in 2008 could automatically invalidate the prior appointment of an executor dative in 1993
• Whether the first respondent had valid title to sell the property given the existence of a prior executor appointment
• Whether the subsequent revocation of the first respondent's certificate of authority rendered the agreement of sale void
• Whether the applicants as purported innocent purchasers could enforce the agreement of sale
• Whether the first respondent proved subsistence of her marriage to the late Clement Chitate at the time of his death

The application for eviction was dismissed with costs against the applicants.

A certificate of authority obtained subsequent to a valid appointment of an executor dative does not automatically invalidate the earlier appointment. Where a certificate of authority is void ab initio due to misrepresentation and subsequent revocation by the Master, the purported executor has no title to pass. Consequently, any agreement of sale concluded on the basis of such void certificate of authority is a nullity. The principle nemo dat quod non habet applies - one cannot give what one does not have. The status of being an innocent purchaser cannot give legal effect to a transaction that is void from its inception.

The court observed that under the law obtaining at the time of Clement Chitate's death in 1992, the first respondent would not have been awarded the matrimonial home in any event. She could not in 2008 claim entitlement to something she was not entitled to under the law applicable at the time of Clement Chitate's death, particularly where an executor dative had been duly appointed. The court also commented on the inadequacy of a City of Harare note as proof of marriage subsistence, emphasizing that the law requires production of a marriage certificate or copy thereof obtained from the relevant registrar of marriages. Such a note only shows that a marriage existed at some point in the past, but does not confirm that the marriage subsisted until the deceased's death.

This case establishes important principles regarding the administration of estates in Zimbabwe/South African law, particularly that: (1) a subsequent appointment of an executor does not automatically revoke a prior valid appointment of an executor dative; (2) where a certificate of authority is obtained through misrepresentation and is subsequently revoked, it is void ab initio; (3) one cannot pass title to property one does not lawfully possess (nemo dat quod non habet); and (4) the status of an 'innocent purchaser' cannot validate a transaction that is void from the outset. The case also reinforces proper evidentiary requirements for proving the subsistence of marriage, requiring production of marriage certificates rather than relying on municipal notes.