The Estate Late Godfrey Madamombe (Represented by Angela Madamombe, Executrix Dative) v Tawanda Mike Matani

The late Godfrey Madamombe died on 25 July 2017. Before his death, on 17 November 2016, he signed a power of attorney authorizing conveyancers to transfer property to the 1st Respondent, Tawanda Matani, pursuant to a sale agreement. However, the deed of transfer was only registered after Mr. Madamombe's death. The Applicant, Angela Madamombe (the executrix dative), challenged the validity of the posthumous transfer, arguing that the power of attorney lapsed upon death. She contended that the sale was only for one acre valued at USD 18,000, not the entire property as reflected in the deed. The Respondent maintained that the sale was concluded during the deceased's lifetime and that the conveyancer was unaware of the death. However, it was undisputed that the Respondent attended the deceased's funeral. The Respondent also used the transferred property as loan security.

• Whether a power of attorney remains valid after the death of the principal
• Whether the power of attorney was 'coupled with an interest' so as to survive the principal's death
• Whether a deed of transfer executed pursuant to a lapsed power of attorney is valid
• Whether property transfers from a deceased estate can be effected without involving the executor dative

1. The Deed of Transfer registered in favour of the 1st Respondent is declared null and void and set aside. 2. The Registrar of Deeds is directed to cancel the title deed issued pursuant to the invalid power of attorney. 3. The first Respondent shall pay costs of suit on the legal practitioner and client scale.

A power of attorney lapses upon the death of the principal by operation of law, as the authority delegated is dependent on the continuous will of the principal which ceases upon death. A power of attorney is only coupled with an interest (and therefore survives death) where the recipient holds a proprietary interest in the subject matter itself, not merely a contractual right to benefit from the transaction. A purchaser under an agreement of sale, even if payments have been made, does not hold such a proprietary interest. Upon death, all rights and property of a deceased person devolve upon the duly appointed executor, who alone has authority to represent the estate and effect transfers of property. A deed of transfer executed pursuant to a power of attorney that has lapsed due to the principal's death is null and void.

The court observed that to uphold a transfer based on a lapsed authority would create a dangerous precedent, encouraging buyers to bypass estate procedures by relying on expired mandates. The court noted that any suggestion of the Respondent's good faith reliance on the power of attorney was undermined by evidence that he attended the deceased's funeral and was therefore aware of the death. The court stated it was unnecessary to address whether the sale was fraudulent, as the invalidity of the power of attorney was dispositive. The court acknowledged that the Respondent remains at liberty to assert his contractual rights, if any, through the proper administration of the estate.

This case reaffirms the fundamental common law principle in Zimbabwean law that a power of attorney lapses automatically upon the death of the principal unless it is coupled with an interest. It clarifies the distinction between a proprietary interest in the subject matter (which survives death) and a mere contractual right to benefit from a transaction (which does not). The judgment reinforces the mandatory role of estate administration and the exclusive authority of executors to deal with deceased estates, preventing parties from bypassing proper estate procedures through reliance on expired mandates. It protects the integrity of the deeds registration system and estate administration processes.