Macelline Daphine Mushava and Alouise Munochemei Mushava v Obram Trust Company Private Limited (In its capacity as Executor Dative of Estate Late Joseph Panganayi Mushava) and Others

The two applicants and the third, fourth, fifth, sixth and seventh respondents were all children and beneficiaries of the late Joseph Panganayi Mushava's estate. The first respondent was the executor of the estate. Upon registration of the estate, the beneficiaries entered into a Beneficiaries Agreement distributing various immovable properties amongst themselves. Two clauses (1(d) and 1(f)) granted all eight beneficiaries the right to use two farms (Doronanga Farm and Marirangwe Farm) provided they paid rates, but made Josiah H. Mushava and Angeline T. Mushava "ultimately responsible" for the general upkeep and administration of each respective farm. The executor interpreted these clauses as conferring ownership on these two individuals and proceeded to transfer ownership accordingly. The applicants contended that all beneficiaries had only usufruct rights and sought a declaratory order that all beneficiaries were owners in equal shares. One beneficiary (Josephine Mushava) was omitted from the application, and the fifth respondent was deceased.

• Whether the Beneficiaries Agreement conferred ownership rights or merely usufruct rights to Doronanga Farm and Marirangwe Farm
• Whether clauses 1(d) and 1(f) of the agreement should be interpreted as bestowing ownership on the individuals responsible for upkeep and administration
• Whether the court should grant a declaratory order declaring all beneficiaries as equal owners when such ownership was not expressly provided for in the agreement
• Whether the court can rewrite or supplement a contract between parties to fill lacunae

The application was dismissed with no order as to costs. The court declined to grant the declaratory order but noted that the executor should facilitate a meeting of beneficiaries to seek agreement on ownership of the two farms in terms of section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

Courts cannot rewrite contracts entered into between parties or read into contracts implied or tacit terms that are not expressly provided for, even where there are gaps or lacunae. The principle of sanctity of contract prevents courts from stepping into the shoes of contracting parties. A usufructuary right to use and enjoy property does not confer ownership of that property. Responsibility for maintenance and upkeep of property does not, without more, translate to ownership rights. Where a beneficiaries' agreement leaves ownership of estate property unresolved, the proper remedy is for beneficiaries to reach agreement on redistribution pursuant to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02], not for the court to declare ownership terms not contained in the original agreement.

The court observed that the executor's interpretation of the clauses as conferring ownership was "clearly outside the contract" and that the executor had chosen to "quickly and conveniently wind up its work" by reading ownership into clauses where it was "evidently absent." The court noted that what the executor should do is facilitate a meeting of beneficiaries to seek a meeting of minds on ownership of the two farms, which would then become the way forward towards winding up the estate. The court also noted procedural irregularities in that one beneficiary (Josephine Mushava) was omitted from the application and the fifth respondent was deceased and improperly cited instead of his estate. The court rejected the applicants' prayer for costs on a higher scale, noting that ultimately the applicants and the third, fourth and sixth respondents agreed that the route the first respondent wanted to embark on was wrong.

This case reinforces the fundamental principle of sanctity of contract in Zimbabwean law, confirming that courts will not rewrite contracts or insert terms that parties have not agreed upon, even where there are lacunae or gaps in the agreement. It clarifies the distinction between usufruct rights (use and enjoyment) and ownership rights in the context of deceased estates. The judgment also demonstrates the proper application of section 5(1)(a) of the Deceased Estates Succession Act, which empowers heirs to agree upon alternative divisions of property devolving in undivided shares, and confirms that such agreement is the appropriate mechanism rather than court intervention to supplement incomplete beneficiary agreements.