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 property to the 1st Respondent, Tawanda Matani, pursuant to a sale agreement. However, the actual deed of transfer was registered after his death. The Applicant, Angela Madamombe (executrix dative of the estate), 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 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 had also used the transferred property as loan security.

• Whether a power of attorney remains valid after the death of the principal
• Whether the posthumous transfer of property based on a pre-death power of attorney is legally valid
• Whether the power of attorney was 'coupled with an interest' and therefore irrevocable
• Whether a third party can effect transfer of a deceased's property without going through the duly appointed 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 first Respondent shall pay the costs of suit on the legal practitioner and client scale.

A power of attorney lapses automatically upon the death of the principal by operation of law, unless it is coupled with a proprietary interest in the subject matter itself. A mere contractual interest or right to derive benefit from the exercise of the power does not constitute an interest sufficient to prevent termination. A power coupled with an interest must involve a real right held by the recipient as principal in the property itself, not merely as a substitute for the grantor. Upon death, all rights and duties devolve upon the duly appointed executor, and no transfer of property can validly occur based on a lapsed power of attorney. Any deed of transfer executed pursuant to such lapsed authority is null and void.

The court noted that it was unnecessary to address whether the sale agreement itself was fraudulent, as the invalidity of the power of attorney was dispositive of the matter. The court observed that the Respondent's attendance at the deceased's funeral undermined any claim of good faith ignorance of the death. The court also commented that upholding such a transfer would create a dangerous precedent encouraging buyers to bypass estate procedures by relying on expired mandates. The court noted that the Respondent remains at liberty to assert his contractual rights, if any, through proper administration of the estate, but cannot rely on the invalid power of attorney to effect transfer.

This case reinforces the fundamental principle of Zimbabwean and South African common law that a power of attorney automatically terminates upon the death of the principal unless it is coupled with a proprietary interest in the subject matter. It clarifies the distinction between a real proprietary right and a mere contractual interest, affirming that only the former can survive the principal's death. The judgment emphasizes the statutory requirement under estate administration law that all dealings with a deceased's property must be conducted through the duly appointed executor, thereby protecting the integrity of estate administration and preventing circumvention of lawful procedures. It serves as an important precedent discouraging parties from bypassing estate procedures by relying on expired mandates.