Selina Thebe (Nee Mabaleka) v Leonard Mabaleka and Municipality of Bulawayo

The applicant's late husband and 1st respondent were brothers born to Lucy Msipa who owned house number 61218 Pelandaba. Lucy Msipa died intestate on 26 April 1991. The applicant was appointed as Executrix Dative on 17 December 2009 for the estate (DRBY 172/08). On 25 February 2010, a final distribution account was approved declaring applicant and 1st respondent sole beneficiaries of the property in equal shares. Both parties agreed the house should be sold by private treaty but disagreed on price. From February 2010, applicant offered to buy out 1st respondent but failed to do so for 3 years while continuing to lease the property and take rentals exclusively. She frustrated 1st respondent by refusing to approach the Master for section 120 authority to sell. The 1st respondent obtained a default judgment under HC 2627/13 for sale of the property. Applicant then sought rescission of the default judgment, claiming she had gone to South Africa for medical treatment and failed to file discovery documents.

• Whether the applicant established 'good and sufficient cause' for rescission of default judgment under Rule 63
• Whether the reasonableness of applicant's explanation for default was satisfactory
• Whether the consent of the Master was required under section 120 of the Administration of Estates Act for sale of property from an intestate estate
• Whether non-citation of the Master in the default judgment proceedings was a fatal defect
• Whether there were procedural irregularities in the approval of the final distribution account
• Whether the applicant had bona fides in seeking rescission
• Whether the applicant had a defence on the merits with prospects of success

The application for rescission of default judgment was dismissed with costs.

To establish 'good and sufficient cause' for rescission of judgment under Rule 63, an applicant must prove: (a) reasonableness of explanation for default; (b) bona fides of the application; and (c) bona fides of defence on merits with prospects of success. Section 120 of the Administration of Estates Act requiring the Master's consent for private sales applies only where the deceased left a will, not in intestate estates. Once the Master approves a final distribution account under section 68E of the Act, he becomes functus officio and need not be cited in subsequent proceedings to enforce that account. An Executrix Dative who fails to implement a lawfully approved final distribution account acts unlawfully and can be compelled by court order to complete the distribution. The doctrine nemo ex suo delicto meliorem suam conditionem facere potest prevents a person from defeating another's rights through their own bad faith. In rescission applications, an attorney's negligence can be visited upon the litigant where the litigant has adopted a lax attitude and failed to exercise diligence.

The court observed that applicant had 'brazenly adopted a scattergun approach' by relying on multiple rules. The court described applicant's assertion that the house belonged to her late husband after donation as a 'shameless assertion.' The court noted that personal rights, while potentially less protected than real rights, must still be respected by all persons and are protected by the doctrine of notice and the principle that intentional infringement constitutes an actionable wrong. The court emphasized the need to look beyond technicalities in circumstances where: a binding distribution account exists; the executor failed to implement it without explanation; the failure deprives heirs of their inheritance; and the executor has no reasonable defence and did not act in good faith for beneficiaries' benefit. The court expressed alarm at applicant's contentions regarding statutory fiscal regulations, noting the order specifically addressed net proceeds.

This case is significant in Zimbabwean (not South African) estate administration law for clarifying that: (1) section 120 of the Administration of Estates Act requiring the Master's consent for private sales applies only to testate estates, not intestate estates; (2) once the Master approves a final distribution account, he becomes functus officio and need not be cited in subsequent enforcement proceedings; (3) an Executrix Dative's failure to implement a lawfully approved distribution account is actionable and borders on unlawfulness; (4) courts will look beyond mere technicalities to do justice where an executor frustrates beneficiaries' inheritance rights; (5) the doctrine nemo ex suo delicto meliorem suam conditionem facere potest prevents a party from benefiting from their own bad faith; and (6) an attorney's negligence can be visited upon the litigant in rescission applications where the litigant demonstrates lack of diligence.