Musasiwa Family Trust v Lawrence Ngwerume and Others

The applicant is a family trust created by Roy Musasiwa. The late Edith Chikafu died on 16 April 2007, leaving a Will that bequeathed Stand 3850 Highfields Township, Harare to the second respondent (her daughter). The second respondent was appointed executrix on 11 February 2009. On 15 August 2009, the second respondent, as executrix, entered into an agreement of sale with the applicant for the purchase of the property for USD11,000 payable in two instalments. The property was transferred to the applicant on 23 September 2009. The first interim liquidation and distribution account was confirmed on 25 August 2009, confirming the property was distributed to the second respondent in terms of the Will. The second respondent was purportedly removed as executrix on 4 February 2011 and replaced by the first respondent (her half-brother) in November 2011. The first respondent occupied the property and refused to vacate, preventing the applicant from taking occupation. The applicant sought eviction of the first and second respondents.

• Whether the sale of estate property by the executrix to the applicant was valid
• Whether the applicant acquired valid real rights in the property through registration
• Whether the subsequent appointment of the first respondent as executor invalidated the prior sale and transfer
• Whether the applicant was entitled to evict occupants from property in which it held registered title
• Whether costs on a legal practitioner-client scale were justified

1. The first and second respondents and all those claiming right of occupation through them or through the estate of late Edith Chikafu shall vacate Stand No. 3850, Highfields Township, Harare, within ten days from the date of the order, failing which the Sheriff, Harare shall evict them without further notice. 2. The first respondent shall pay costs on the ordinary scale.

Registration of rights in immovable property under the Deeds Registries Act is a matter of substance that conveys real rights upon those in whose name the property is registered, enforceable against the whole world. A registered owner is entitled to claim the property and evict occupants without authority. Acts performed by an executor before removal remain valid until set aside by a court order. The subsequent appointment of a replacement executor does not have retrospective effect and does not invalidate prior valid acts of administration, including the sale and transfer of estate property. An executrix who is also a beneficiary of estate property has authority to sell that property to settle estate expenses. Passive resistance to eviction without taking positive action to challenge registered title provides no legal basis to resist eviction.

The court observed that while there are authorities requiring consent from the Master before sale of estate property, obtaining such consent before transfer (rather than before sale) may not be fatal to the sale in particular circumstances, especially where the Master grants consent to transfer after being satisfied with the reasons for the sale. The court also commented that at most, the first respondent's appointment as executor should deal with any assets that may not have been accounted for in the first distribution account. Additionally, the court noted that the mere fact that a party has chosen to oppose an application should not on its own be the basis of seeking costs on a higher scale, as it is every party's constitutional right to defend what they perceive to be unjust.

This case is significant in Zimbabwean property law as it reinforces the principle that registration of immovable property under the Deeds Registries Act conveys real rights that are enforceable against the whole world. It clarifies that acts performed by an executor before their removal remain valid until set aside by a court, and that subsequent appointment of a replacement executor does not have retrospective effect. The case also establishes that an executrix who is also a beneficiary of estate property has authority to sell that property to settle estate expenses, and that mere passive resistance to eviction without taking positive steps to challenge registered title is insufficient to prevent eviction. Additionally, it provides guidance on when costs on a higher scale are appropriate, holding that mere opposition does not justify such an order.