Melania Midzi and John Midzi v Master of the High Court of Zimbabwe N.O and Others

The applicants were siblings with the third to sixth respondents. Their mother passed away and her estate was registered under DRMT 53/12. Their father passed away on 8 July 2011 and his estate was registered under DRMRE 467/23. The second respondent was appointed executor of both estates. In May 2024, the second respondent convened a meeting regarding winding up the estates and sharing property. The third, fourth, and fifth respondents consented to selling a house (Stand 791A Umtali measuring 3345 square meters, also known as Stand 1 Aerondrome Road Mutare) and a bottle store (18109 Nyanzira Business Centre, Sabi Buhera) so they could receive money for their shares. Both applicants did not consent to the sale. The first applicant proposed to buy out her siblings' shares and wrote to the first and second respondents. Despite this, the first respondent (Master of the High Court) issued consent to sale of both properties. The applicants sought to set aside this decision, alleging the Master acted unlawfully, unreasonably, and unfairly. Both estates were illiquid with unpaid liabilities, and beneficiaries made no contributions toward statutory obligations.

• Whether the Master of the High Court acted unlawfully, unreasonably, and unfairly in granting consent to sell estate property under section 120 of the Administration of Estates Act
• Whether the Master complied with the procedural requirements of conducting a 'due inquiry' before issuing consent to sale
• Whether the Master complied with the requirements of the Administrative Justice Act in exercising administrative functions
• Whether preliminary objections regarding computer-generated dates on affidavits were valid
• Whether the application should have been brought as a review under section 27 of the High Court Act rather than under the Administrative Justice Act

The application was dismissed with costs.

1. When the Master of the High Court exercises powers under section 120 of the Administration of Estates Act to authorize sale of estate property otherwise than by public auction, this constitutes administrative action that must comply with section 3 of the Administrative Justice Act [Chapter 10.28], requiring the Master to act lawfully, reasonably, and in a fair manner. 2. A 'due inquiry' under section 120 requires the Master to conduct a fitting or appropriate investigation involving consideration of submissions from all interested parties, including beneficiaries, and assessment of what would be advantageous given the circumstances. However, unanimous consent of all beneficiaries is not required. 3. A party challenging an administrative decision bears the onus of proving that the decision was unlawful, unreasonable, or unfair. 4. Where a party fails to respond to allegations and submissions made in an affidavit or report, those unchallenged averments are taken as admitted. 5. A person given an opportunity to be heard who ignores that opportunity cannot later complain of deprivation of the right to be heard.

The court observed that in moving toward a paperless judicial system, it is retrogressive to object to computer-generated dates on affidavits where the dates are clearly stated and the documents are properly concluded. The court noted that a beneficiary seeking to 'buy out' other beneficiaries' shares would necessarily require the Master's consent to sale, as such a transaction constitutes a sale requiring the same authorization being challenged.

This case clarifies the procedural requirements for the Master of the High Court when exercising powers under section 120 of the Administration of Estates Act to authorize sale of estate property by private treaty. It confirms that the Master's exercise of such powers constitutes administrative action subject to the Administrative Justice Act [Chapter 10.28] and must comply with requirements of lawfulness, reasonableness, and fairness. The case reinforces that 'due inquiry' requires the Master to hold meetings with beneficiaries, consider their submissions, and assess what would be advantageous to beneficiaries, but does not require unanimous consent of all beneficiaries. It also confirms that challenges to the Master's administrative decisions can properly be brought under the Administrative Justice Act rather than necessarily by way of review. The case further demonstrates the importance of responding to all affidavits and reports filed in proceedings, as unchallenged allegations will be taken as admitted.