The Estate Late Godfrey Madamombe (Represented by Angela Madamombe, Executrix Dative) v Tawanda Mike Matani and The Registrar of Deeds, Bulawayo

The late Godfrey Madamombe died on 25 July 2017. Before his death, on 17 November 2016, he signed a power of attorney authorising conveyancers to transfer his property to the 1st Respondent, Tawanda Matani, pursuant to a sale agreement. The actual deed of transfer was registered after the deceased's death. The Applicant (Angela Madamombe, executrix dative) argued that the power of attorney lapsed upon her father's death, rendering the posthumous transfer invalid. She contended that the sale was only for one acre valued at USD 18,000, not the entire property as reflected in the deed, and that the Respondent failed to specifically deny material facts. The Respondent maintained 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, putting the estate at risk.

• Whether a power of attorney remains valid after the death of the principal
• Whether the deed of transfer registered after the principal's death was valid
• Whether the power of attorney was coupled with an interest so as to survive the principal's death
• Whether a buyer under a sale agreement can effect transfer without involving the estate's executor

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

At common law, a power of attorney lapses automatically upon the death of the principal. A power of attorney is only coupled with an interest (and therefore survives the principal's death) where the recipient holds a proprietary interest in the subject matter itself—a real right in the property on which the power is to be exercised—not merely a contractual right to derive benefit from the exercise of the power. A buyer under a sale agreement who has not yet acquired ownership holds only a contractual right and not a proprietary interest; such a buyer's power of attorney lapses upon the seller's death. Upon death, all rights, duties, and liabilities of the deceased devolve upon the duly appointed executor, and no transfer of property can be validly effected through a power of attorney that has lapsed. A deed of transfer registered pursuant to a lapsed power of attorney is null and void.

The court observed that allowing 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 the Respondent's claim of good faith reliance on the power of attorney was undermined by uncontroverted evidence that he attended the deceased's funeral and was therefore aware of the death. The court also commented that the Respondent used the transferred property as loan security, putting the estate at risk. The court found it unnecessary to address whether the sale was fraudulent, as the invalidity of the power of attorney was dispositive of the matter. The court noted that the Respondent remains at liberty to assert his contractual rights, if any, through the proper administration of the estate.

This case reinforces the fundamental principle of agency law in Zimbabwe that a power of attorney lapses automatically upon the death of the principal unless it is coupled with a proprietary interest in the subject matter. It clarifies the distinction between a power coupled with an interest (a real right in the property itself, which survives death) and a mere contractual right to benefit from the exercise of the power (which does not survive). The case emphasizes the mandatory role of estate administration procedures under the Administration of Estates Act and confirms that property transfers from deceased estates can only be effected through duly appointed executors. It serves as a warning against attempts to bypass estate procedures by relying on pre-death powers of attorney that have lapsed, protecting the integrity of estate administration and preventing fraud.