Lovemore Goredema (In his capacity as the Executor of the Estate Late Robert Tendayi Magwenzi) v Patricia Magwenzi and Others

The applicant, Lovemore Goredema, as executor of the estate of the late Robert Tendayi Magwenzi, sought to evict the three respondents (nieces and nephew of the deceased) from property located at house number 9399 Unit "K" Seke, Chitungwiza. The deceased passed away on 3 August 2000 and was resident at the property which had allegedly been sold to him by his brother (the respondents' father) in 1995 and transferred into his name. The deceased's will bequeathed the property to his second wife, Patricia Chitongo. The respondents had taken occupation of the property, claiming it belonged to their father. They disputed the validity of the sale agreement and the will, alleging both were forgeries. The executor had granted a special power of attorney to Lovemore Magwenzi to represent him in the matter. The application was filed in the executor's name, but Lovemore Magwenzi was the deponent of the founding affidavit and had actively prosecuted the matter in the Magistrates' court.

• Whether Lovemore Magwenzi had locus standi to institute proceedings on behalf of the executor
• Whether the special power of attorney granted by the executor to Lovemore Magwenzi amounted to an unlawful abdication of the executor's functions
• Whether an executor testamentary can delegate his functions without compliance with section 28 of the Administration of Estates Act
• Whether the matter was res judicata (this point was abandoned by respondents)

The application was dismissed. The costs of the application were ordered to be costs in the cause.

An executor testamentary cannot abdicate his functions by granting an unrestricted power of attorney to another person to represent him generally as executor of an estate. Where an executor wishes to assume another person as co-executor by virtue of assumptive powers granted in a will, he must comply with section 28 of the Administration of Estates Act, which requires: (a) that the assumed executor be a relative of the deceased (next of kin), and (b) that the Master of the High Court grant that person letters of administration. Both requirements must be satisfied. An executor may delegate specific functions while remaining responsible, but may not appoint someone to act instead of himself so as to relieve himself of responsibility. Where an executor has played no active role in estate administration and another person acts entirely in his stead pursuant to a general power of attorney, this constitutes impermissible abdication.

The court cited with approval the principle from Bramwell & Lazar N.N.O v Lamb 1978 (1) SA 380 that it is common practice and convenient for an executor to authorize another person to carry out some or all of his functions on his behalf, provided the executor remains responsible for those acts. The court also noted the requirements for a successful plea of res judicata, citing Kawondera v Mandebvu S 12/06, 'O' Shea v Chiunda 1999 (1) ZLR 333, and Le Roux v Le Roux 1967 (1) SA 446, namely that the previous matter must be between the same parties or their privies, on the same subject matter, founded on the same cause of action, and that the earlier court must have given a final and definitive judgment. The court observed that a plea of res judicata is a form of estoppel designed to bring finality to litigation determined by a court of competent jurisdiction.

This case is significant in Zimbabwean law for clarifying the distinction between permissible delegation and impermissible abdication of an executor's functions. It establishes that an executor testamentary who wishes to appoint another person to act as executor must comply strictly with section 28 of the Administration of Estates Act, which requires both that the appointee be a relative and that the Master grant letters of administration. The case emphasizes that while an executor may delegate specific tasks while remaining responsible, he cannot hand over complete control of the estate to another person through a general power of attorney. This protects the integrity of estate administration and ensures proper oversight by the Master of the High Court.