Margaret Ndlovu v Chiquita Morris N.O and Deputy Sheriff, Bulawayo

The applicant sought an urgent stay of execution of a writ of ejectment issued under case number HC 1978/2010. The applicant claimed she had purchased property from Nigel Damain Morris, who purported to be the Executor of the Estate of the late Nellie Helen Morris. She paid the full purchase price and occupied the property since 2008. The first respondent, as Heiress and Executrix of the estate, obtained a default judgment for ejectment against the applicant. The applicant had previously applied for rescission of that judgment and stay of execution under case numbers HC 1103/11 and HC 1104/11, but the stay application was dismissed and the rescission application was abandoned. After losing those applications, the applicant entered into a written agreement with the first respondent to remain on the property for a further 6 months on payment of rent. Critically, Nigel Damain Morris's executorship was set aside by Mawadze J in case HH 71/2011, and the purported Will appointing him as Executor was nullified by Chitakunye J in case HC 1057/09, meaning he had no authority to sell the property.

• Whether the applicant had a valid agreement of sale for the disputed property
• Whether the applicant had any legal basis to remain in occupation of the property
• Whether a stay of execution should be granted
• Whether the applicant's conduct warranted punitive costs

The application was dismissed. The applicant was ordered to pay costs on an attorney and client scale (punitive costs).

A person purporting to act as executor of an estate has no authority to sell estate property where their executorship and the Will appointing them have been set aside by court order. Any purported sale by such a person is void and confers no legal rights on the purchaser. A discretionary arrangement allowing continued occupation on humanitarian grounds does not create a legal right to remain in occupation and does not constitute a waiver of the property owner's right to eject. Courts will impose punitive costs on litigants who persist with claims they know to be legally unfounded and who seek to mislead the court.

The court observed that litigants' deceitful conduct that causes unnecessary delay and prejudice cannot be allowed by the courts. The court commented that punitive costs are designed to ensure fair and honest dealings by litigants and that courts should not hesitate to order them where the facts clearly call for such an order. The court stated that courts should firmly stamp their authority in cases involving misleading conduct by litigants.

This case demonstrates the Zimbabwean High Court's willingness to impose punitive costs (attorney and client costs) on litigants who engage in dishonest or misleading conduct. It reinforces the principle that transactions by persons without legal authority (such as executors whose appointments have been invalidated) are void and confer no rights on purchasers. The case also illustrates that humanitarian or discretionary arrangements do not create legal rights or constitute a waiver of the property owner's rights to eject unlawful occupants.