Super Wholesalers (Pvt) Ltd v Wilson Tatenda Manase, Frank Maisiri, Master of the High Court, City of Harare

The late Sandra Jane Faith Maisiri died on 3 January 2002. The first respondent was appointed Executor Dative of her estate on 6 May 2002. Among the estate properties was Stand 274 Willowvale Township, Harare, which according to City of Harare records was held by Maisiri in the name of Maisiri Bus Service, an unincorporated entity owned by her. After her death, Frank Maisiri (the second respondent and son of the deceased) sold the property to the appellant and authorized the City of Harare to cede title to the appellant. On 3 March 2004, the City advised Frank it would transfer the stand to the appellant. On 17 August 2004, the appellant obtained a provisional order (confirmed 23 February 2005) prohibiting Frank from alienating the property and ordering him to sign transfer papers. Neither the Executor nor the Master was party to this application. In September 2005, the first respondent advised the appellant through its managing director that Frank had illegally sold estate property. Despite this, the appellant obtained an eviction order on 26 February 2007 against Frank and a lessee. The first respondent then successfully applied to set aside the eviction order, declare the property belonged to the estate, and reverse the cession to the appellant.

• Whether Frank Maisiri had capacity and authority to dispose of property belonging to a deceased estate
• Whether an unincorporated entity (Maisiri Bus Service) could own property
• Whether orders obtained without joining the Executor of a deceased estate as a party were properly granted
• Whether the eviction order of 26 February 2007 was wrongfully obtained

The appeal was dismissed with costs. The orders of 23 February 2005 and 26 February 2007 remained set aside. The property was declared to belong to the Estate of the late Sandra Jane Faith Maisiri, and the City of Harare was directed to reverse the cession to the appellant.

Only an Executor is authorized to deal with property belonging to a deceased estate. A person who is not the Executor lacks both capacity and authority to dispose of estate property. An unincorporated entity, not being a legal persona, cannot own property. Orders affecting estate property obtained without joining the Executor and Master as parties are improperly granted and will be set aside. Courts will not grant orders relating to estate property without allowing the Executor an opportunity to be heard.

The Court observed that the appellant, through its managing director, was aware of the fraud committed by Frank Maisiri and had "snatched at" the eviction order despite being advised that the property belonged to a deceased estate. The Court noted Frank's admission that he had offered to return the purchase price to the appellant but that the appellant had refused to accept it, suggesting the appellant's awareness of the irregularity of the transaction.

This case establishes important principles regarding the protection of deceased estates and the authority required to dispose of estate property. It reinforces that proper procedure must be followed when dealing with estate assets, including joining the Executor and Master as parties to proceedings affecting estate property. The case also confirms that unincorporated entities lack legal personality and cannot own property in their own right. It serves as a warning against parties who knowingly participate in irregular transactions involving estate property, emphasizing that courts will not countenance attempts to circumvent estate administration procedures.