The applicant (Wallmac Chirimba) and first respondent (Charles Chirimba) are allegedly siblings, though the applicant disputes that the first respondent is his father's son. The dispute concerns immovable property, stand number 8577 Kuwadzana phase 3, which belonged to the late Timothy Chirimba who died on 22 January 2005. Timothy Chirimba was a cooperative member of the Chindunduma Housing Cooperative and the property was allocated to him. After Timothy Chirimba's death, the first respondent allegedly got his name substituted for the deceased at cooperative level and proceeded to obtain title to the property, including title deeds, without the estate of the late Timothy Chirimba having been registered. The estate was only registered by the applicant in 2020. The applicant sought to reverse the transfer of the property back into the late Timothy Chirimba's estate. At the time of instituting the application, the applicant had no letters of administration. An executrix dative, Takura Mukwesha, was later appointed and attempted to substitute herself for the applicant under Rule 85A(3).
The application was struck off the roll with costs against the applicant.
A deceased estate can only be represented in litigation by an executor or executrix duly appointed and issued with letters of administration by the Master, as provided in section 25 of the Administration of Estates Act. Without such letters of administration, a person has no locus standi to represent the estate, regardless of their relationship to the deceased or their role in registering the estate. Rule 85A(3) applies only where a party to proceedings dies while proceedings are pending and cannot be used to substitute an executor for a living party who is improperly before the court. An executor represents the estate itself, not individual heirs or beneficiaries, and must maintain independence and neutrality. Proceedings commenced by a party without locus standi are a nullity that cannot be cured.
The court observed that the executrix, as a legal practitioner, should have known better than to attempt to use Rule 85A(3) improperly and to align herself with one beneficiary. The court indicated that there was no order of joinder granted in the related case HC 7408/20. The court noted that the executrix would have to properly approach the court as executrix of the Estate Late Timothy Chirimba if she wished to pursue the matter. The court also commented that the citation of a deceased estate as a party to litigation is wrong; the correct party to cite is the executor by name.
This case reinforces fundamental principles of estate administration in Zimbabwean law, confirming that only a duly appointed executor with letters of administration has locus standi to represent a deceased estate in legal proceedings. It clarifies the limited scope of Rule 85A(3), which cannot be used to remedy defective standing of a living party. The case also emphasizes the executor's duty of neutrality and independence from individual beneficiaries. While this is a Zimbabwean case rather than South African, it reflects common law principles shared across the region regarding estate representation and the importance of proper appointment of estate representatives.