Show Magaisa and Talent Musarara v Admire Songore

The applicants, husband and wife, purchased Stand No. 13469 Unit N, Seke, Chitungwiza from Aniston Alois Musunga, the Executor Dative in the estate of the late Janet Margaret Chikwandami who died intestate in 2004. The sale was concluded on 13 March 2014 with the consent of the Master of the High Court. The applicants paid the full purchase price of $7,000 and had cession effected in their names at Chitungwiza Municipality. The respondent refused to vacate the property, claiming that his deceased father, the late Bigboy Songore, had purchased the property in 2007 from the deceased's beneficiaries (Cathrine Songore and Lister Musarara) before the estate was registered. The respondent alleged fraud and a double sale. The estate of Bigboy Songore was not registered. The respondent had previously unsuccessfully challenged the consent to sale in HC 7011/16, which was dismissed by Zhou J on the basis that he lacked locus standi.

• Whether the applicants had valid title to the property based on their purchase from the duly appointed executor with the Master's consent
• Whether the respondent had locus standi to challenge the sale without being the executor of his father's estate
• Whether the respondent could resist eviction based on an alleged prior sale to his deceased parents
• Whether costs on a higher scale were justified
• Whether a declaratory order was appropriate in the circumstances

1. The respondent and all those claiming occupation through him were ordered to vacate Stand 13469 Unit N Seke Chitungwiza within ten (10) days from the date of service of the order, failing which the Sheriff shall effect eviction. 2. The respondent was ordered to pay costs of suit on a legal practitioner and client scale.

A person who is not the executor of an estate lacks locus standi to challenge property transactions on behalf of that estate or to assert rights based on alleged purchases by the deceased. Where a sale of immovable property has been validly concluded by a duly appointed executor with the Master's consent, and cession has been effected, such sale remains valid and enforceable until set aside by a competent court. An occupier who cannot establish legal title or a valid basis for occupation is liable to be evicted. Claims of fraud, double sale, or prior purchase can only be raised by an estate through its properly appointed executor, not by a beneficiary or family member acting in their personal capacity.

The court observed that a declaratory order becomes academic where the municipality has already recognized the applicants as the proper holders of rights to the property and there is no valid contestation to their claim. The court also noted that given the adversary the applicants chose to bring before the court, the relief of a declaratur was not appropriate in the circumstances. The court expressed puzzlement as to why the respondent, having been advised in 2016 that he lacked locus standi, had not properly registered his parents' estate to protect the estate's interests. The court left open the question of whether the raising of inapplicable arguments, including a constitutional issue, was due to lack of proper legal advice or otherwise, describing it as "a question for another day."

This case illustrates important principles in Zimbabwean property and succession law, particularly: (1) the binding nature of sales conducted by duly appointed executors with the Master's consent; (2) the requirement of locus standi to challenge estate transactions - only an appointed executor can raise claims on behalf of an estate; (3) the necessity of registering estates to protect rights and interests of deceased persons; (4) the limits of claiming rights based on unregistered estates and alleged prior sales; (5) when costs on a higher scale are appropriate in eviction matters involving frivolous opposition. The case reinforces the integrity of the estate administration process and the finality of properly conducted estate sales.