Thabiso Daka and Winifilda Daniel v Oliver Masomera N.O and Margaret Gwatidzo and Master of the High Court and Master of the High Court N.O

The late Madison Daniel died intestate on 20 December 1993 at Harare, leaving behind immovable property (House Number 966 Nyanga Street, St Marys, Chitungwiza) and two daughters (the applicants). Madison was survived by his father Daniel Dhaka (who died in 1999) and four siblings. Unbeknown to the applicants, Madison's sister, the late Winnie Dhaka, registered his estate on 4 January 1995 under DR 10/95 and was appointed executrix dative on 9 January 1996. The estate was wound up and the property awarded to Winnie based on false information that Madison had predeceased his father, had no children, and that Winnie was the only surviving sibling. In March 2022, the first applicant attempted to register Madison's estate (registered as DRCZ 8/22) and discovered the prior registration and fraudulent conduct. Upon Winnie's death, the first respondent was appointed executor of her estate and began collecting rentals from the property without remitting them to the applicants.

• Whether the application to reopen the estate had prescribed in terms of the Prescription Act
• Whether special circumstances existed to justify the reopening of an estate that had been wound up more than 30 years prior
• Whether fraud or misrepresentation by the late Winnie Dhaka in the administration of Madison Daniel's estate constituted grounds for setting aside the distribution account and reopening the estate

1. The application to reopen the estate of the late Madison Daniel under DR 10/95 is granted. 2. The First and Final Distribution Account in the Estate Late Madison Daniel under DR 10/95 is set aside. 3. The Estate of Madison Daniel shall be re-opened for administration by an independent executor to be appointed by the Master of the High Court. 4. The appointment of the Late Winnie Dhaka as Executrix Dative is set aside. 5. The Master is ordered to appoint an independent executor to administer the estate. 6. The transfer or cession of rights in House Number 966 Nyanga Street, St Marys, Chitungwiza occasioned by the late Winnie Dhaka is set aside and the property shall revert to being in the name of the late Madison Daniel until administration is completed. 7. Each party shall bear their own costs.

An estate that has been wound up may be reopened where special circumstances exist, specifically where there has been fraud or material misrepresentation in the administration of the estate. Material misrepresentation in a Death Notice regarding the existence of direct descendants and surviving relatives of the deceased constitutes fraud sufficient to justify setting aside the distribution account and reopening the estate for proper administration. For purposes of prescription under s 16(3) of the Prescription Act, the debt is not due until the creditor becomes aware of the facts from which the debt arises, which in estate matters means when the aggrieved party becomes aware of the fraudulent administration.

The court noted that the Master's office submitted that it would be guided by the court's decision and had no objection to the relief sought if the court found that the late Winnie Dhaka falsely misrepresented herself as the sole beneficiary. The court also observed that the resolution at the 29 November 2021 edict meeting, which advised the applicants to register the estate, would not have been made if the applicants were aware that their father's estate had already been registered, thus supporting their claim that they only became aware in March 2022.

This case is significant in Zimbabwean estate law as it establishes clear guidelines for when a finalized estate may be reopened. It confirms that fraud and material misrepresentation constitute special circumstances warranting the reopening of an estate, even decades after it was wound up. The judgment reinforces the importance of truthful disclosure in estate administration and protects the rights of legitimate beneficiaries who were excluded through fraudulent conduct. It also clarifies the application of prescription principles in estate matters, particularly that prescription only begins to run when the creditor becomes aware of the facts giving rise to the claim under s 16(3) of the Prescription Act.