Sibhekile Sibanda v Mpilo Msipha and Others

The late Laiza Khumalo died intestate on 5 May 2014, survived by two daughters: the applicant (Sibhekile Sibanda) and Bekezela Mpofu. The only estate property was house No. 70681 Lobengula West Township, Bulawayo. Initially, the applicant wanted the house sold while Bekezela, who lived there, opposed the sale. The Master gave Bekezela 30 days to buy out the applicant, which she failed to do twice. Eventually, both beneficiaries agreed to sell the house and share the proceeds. The house was sold in 2018 to the 1st respondent (Mpilo Msipha) for US$26,100. The applicant received half of the deposit (US$7,706). Bekezela died on 29 January 2019. When the 1st respondent applied to compel transfer under HC 803/19, the applicant did not oppose and a default order was granted on 30 May 2019. More than a year later, the applicant sought rescission of that judgment under Order 49 Rule 449, claiming the sale was unlawful because no Section 120 Certificate of Authority had been issued, and seeking removal of the 3rd respondent (Surprise Ndlovu) as Executrix Dative.

• Whether the applicant had locus standi to apply for rescission of a judgment in proceedings to which she was not a party
• Whether the judgment in HC 803/19 was erroneously granted in the absence of an affected party under Rule 449(1)(a)
• Whether the absence of a Section 120 Certificate of Authority rendered the sale unlawful and the subsequent transfer order invalid
• The proper interpretation and application of Section 120 of the Administration of Estates Act, Chapter 6:01
• Whether the court becomes functus officio after pronouncing final judgment

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

1. Generally, only a party against whom a judgment has been given in default may apply to have that judgment set aside under Rule 449; a person who was not a party to the proceedings lacks locus standi to apply for rescission. 2. For a judgment to be rescinded under Rule 449(1)(a) as erroneously granted in the absence of an affected party, it is not sufficient merely to show absence and being affected - it must be shown that the judgment was actually granted in error. 3. Section 120 of the Administration of Estates Act, Chapter 6:01 does not create a mandatory requirement for a Certificate of Authority for all sales of estate property. The section confers discretionary power on the Master ('may' not 'must' or 'shall') to authorize sales other than by public auction when in his opinion it would be advantageous to interested parties and the Will contains no contrary provision. 4. Once a court has duly pronounced final judgment, it becomes functus officio and has no authority to correct, alter or suspend it, except in limited circumstances such as supplementing accessory or consequential matters or correcting patent errors or omissions.

The court observed that it is becoming prevalent for parties or lawyers to unilaterally write to judges claiming errors and asking for corrections, which is improper. Where correction, variation or rescission of a judgment is sought on grounds of ambiguity, patent error or omission, this should be brought to the judge's attention by concurrence of both parties, not unilaterally. The court also commented that the applicant appeared to be motivated by two factors: (1) her complaint about not receiving her full share of the sale proceeds, which should be pursued against the Executrix or legal practitioners involved, not the innocent purchaser; and (2) seeing an opportunity to repossess the house for her full benefit after her co-beneficiary sister's death. The court noted it would be undesirable for a judge to rescind or vary a whole judgment mero motu in the absence of parties, though minor corrections of grammatical, typographical or wording mistakes might be appropriate.

This case is significant for clarifying the scope and application of Section 120 of the Administration of Estates Act, Chapter 6:01 in Zimbabwean law. The judgment corrects a common misconception that a Section 120 Certificate is mandatory for all sales of estate property. It establishes that the section grants discretionary power to the Master, exercisable when he deems it advantageous to interested parties and not contrary to the Will. The case also reinforces principles regarding locus standi in rescission applications under Rule 449, confirming that generally only parties to the original proceedings may seek rescission. It demonstrates the courts' unwillingness to use technical irregularities to undo properly granted judgments, particularly where the applicant actively participated in and benefited from the underlying transaction and seeks to take advantage of changed circumstances (death of co-beneficiary) to the detriment of innocent third parties.