Maxwell Masose v Fortune Mutemeri N.O. and Others

The late Never Vambe Mutemeri owned land in Goromonzi district measuring 43,1055 hectares called Subdivision A of Chito of Sebastopol. He obtained a subdivision permit through Ruwa Local Board in October 2004 and used a company called Teslat Investments (Pvt) Ltd (second respondent) to develop and sell residential stands. The applicant, a UK-based resident, claims to have purchased stand 20930 from the second respondent on 25 April 2005 for Z$67,200,000, which he paid in full. The late Never Vambe Mutemeri, as managing director of the second respondent, signed the agreement of sale, though the land was registered in his personal name. Never Vambe Mutemeri died in 2011 before transfer could be effected. The first respondent was appointed executor dative of the estate. The estate was wound up with a distribution account approved in August 2013. The same stand 20930 was awarded to the fourth respondent (Tetrad Holdings) in the distribution account. The applicant only became aware of this when his legal practitioners examined the Master's file. The fourth respondent's agreement of sale was dated 15 September 2003, before the subdivision permit was issued in October 2004. The estate is subject to approximately 32 related court cases involving disputes over stand sales.

• Whether the applicant has locus standi to seek reopening of the deceased estate when he contracted with a company (second respondent) rather than the deceased personally
• Whether there are material disputes of fact precluding determination on the papers
• Whether the corporate veil should be pierced to hold the deceased's estate liable for transactions conducted through the company
• Whether the deceased estate should be reopened to allow the applicant to lodge a claim despite the estate having been finalized
• Whether the executor should be removed and replaced with a neutral executor
• Whether an agreement of sale concluded before issuance of a subdivision permit is valid

1. The application partly succeeded. 2. The third respondent (Master) was ordered to reopen the Estate Late Never Vambe Mutemeri DR 1768/11 to enable the applicant to lodge his claim in relation to stand 20930 of Subdivision A of Chito of Sebastopol (also known as Stand 20930, Elizabeth Park, Ruwa). 3. Each party to bear its own costs.

1. A party has locus standi to seek reopening of a deceased estate where the same property he allegedly purchased is dealt with in the estate and awarded to another party, constituting a real and substantial interest even where the original contract was with a company rather than the deceased personally. 2. The corporate veil may be pierced in estate administration to avoid manifest injustice where the deceased, as registered owner of property and managing director of a company, personally represented the company as seller of property the company did not own. 3. An agreement for sale of a subdivided portion of property concluded before issuance of a subdivision permit violates section 39 of the Regional, Town and Country Planning Act [Chapter 29:12]. 4. A deceased estate may be reopened to allow lodging of a claim where the claimant provides reasonable explanation for delay and demonstrates good prospects of success in the claim. 5. An executor will only be removed where there is clear evidence of gross negligence or misconduct detrimental to the estate or beneficiaries, not merely because of complexity or numerous disputes arising from the deceased's conduct.

The court noted that case HC 1088/11, on which the applicant relied, was abandoned or lapsed by operation of Practice Direction 3 of 2013 section 10, being over three months since postponement sine die, and the relief sought therein (transfer of entire property to an association) was incapable of being granted as it would affect parties who properly lodged claims but were not party to that litigation. The court observed that factors to consider when assessing propriety of executor conduct include: explanation for delay in winding up; size and complexity of estate; steps taken to date; relationship between executor and beneficiaries; adequacy of steps to protect estate; the Master's report and recommendations; and generally whether executor acted diligently in protecting estate assets. The court emphasized that removal of an executor should not be ordered lightly, and while it is primarily the Master's prerogative under the Administration of Estates Act, the High Court retains common law jurisdiction to remove executors on good grounds shown.

This case is significant in Zimbabwean law for establishing when the corporate veil may be pierced in estate administration matters to prevent manifest injustice. It clarifies that a creditor who contracted with a company may have locus standi to claim against the deceased estate of the company's director where the director (as registered owner of property) personally represented the company in selling property the company did not own. The judgment reinforces that agreements for subdivision or sale of portions of property concluded before issuance of a subdivision permit violate section 39 of the Regional, Town and Country Planning Act and may be invalid. It also provides guidance on when deceased estates may be reopened after finalization where there are allegations of double sales and creditors who failed to lodge timeous claims provide reasonable explanations for delay. The case demonstrates the court's willingness to balance finality in estate administration against substantive justice for creditors.