Sikhethintombi Ngwenya v M. L. Motsi N.O (In Her Capacity as the Executor of the Estate of the Late Ruth Gasela) and Others

The late Ruth Gasela left a will dated 25 June 1999 bequeathing various assets, specifically stand number 41 Gladstone Road (Bellevue), to her children. The will provided that the house should be jointly owned by all her children and should not be sold unless and until all children had died. Langathani Dube was appointed as executrix testamentary and given letters of administration. Without approval from the beneficiaries and without seeking the Master's consent in terms of section 120 of the Administration of Estates Act, Dube sold stand 41 Gladstone Road to the applicant through the second respondent (Net Seven Agencies). Following the irregular sale, Dube was removed as executrix by the Assistant Master, and M. L. Motsi was appointed as the current executrix. The first respondent alleged that the previous executrix never remitted any funds to the estate after the unauthorized sale, and that part of the funds were still being held by the second respondent.

• Whether the sale of immovable property by an executrix without the Master's consent in terms of section 120 of the Administration of Estates Act is valid in a testate estate
• Whether an executor who exceeds the authority given in terms of the will can bind the estate to a transaction
• Whether the applicant as a purchaser from an executrix who acted without authority has any remedies against the estate
• Whether costs should be awarded against a deceased estate in these circumstances

The application was dismissed with each party bearing their own costs.

Section 120 of the Administration of Estates Act is peremptory in testate estates and must be followed strictly. An executor has a duty to administer and distribute an estate in accordance with the law and with strict adherence to the provisions of the will. Where an executor exceeds the authority given in terms of the will and acts without the required Master's consent under section 120, the transaction is null and void and not binding on the estate. Where an act is a nullity, nothing follows from it, regardless of a party's innocence. An executor who exceeds their authority cannot bind the estate to a transaction, applying the principle that where an agent exceeds express or implied authority, the principal is not bound by the transaction.

The court observed that the previous executrix could perhaps be sued in delict by the applicant, suggesting that this might be the only avenue for the applicant to seek redress. The court also commented on the conduct of the first respondent in not alerting the applicant on time about the testate nature of the estate, noting that while such conduct was not acceptable, the applicant also had a duty to inform themselves fully of the circumstances relating to the estate and information kept at the Master's office. The court noted that it could not order personal costs against the first respondent as she was cited in an official capacity representing a deceased estate.

This case reinforces the peremptory nature of section 120 of the Administration of Estates Act in testate estates in Zimbabwe. It confirms that executors must strictly adhere to both the terms of a will and statutory requirements when disposing of estate property. The case is significant for establishing that transactions conducted by executors in breach of their mandate are null and void, and that innocent third-party purchasers cannot enforce such transactions against the estate. It also clarifies that where an executor acts beyond their authority, the purchaser's remedy lies in a delictual claim against the executor personally, not against the estate.