The first respondent, Cosmos Motsi, was the eldest surviving son of the late Benjamin Motsi who died intestate before the promulgation of Act 6/97. He was appointed heir to the estate on 12 June 2007 and in that capacity prepared a distribution plan awarding himself immovable property Stand 12637 Zengeza 5, Chitungwiza. He obtained a Certificate of Authority from the Master in August 2007 to effect cession. On 14 December 2007, the fourth to seventh respondents (other children of the deceased) obtained a High Court order restraining the first respondent from disposing of the property pending an investigation by the Master to determine whether they were dependants of the estate. Despite this order, the first respondent sold the property to the applicant, Wilson Chari, on 25 February 2008. When the applicant could not effect cession, he approached the court seeking an order compelling the first respondent to cede the property and declaring that the fourth to seventh respondents had no interest in it. The Master's reports confirmed that the first respondent inherited the property in his individual capacity and that the fourth to seventh respondents were not dependants of the estate.
The court ordered: (1) The fourth to seventh respondents were declared to have no enforceable rights and interest in Stand No. 12637 Zengeza 5, Chitungwiza; (2) The first respondent was ordered to cede rights, title and interest and effect cession of the property into the applicant's name within seven days, failing which the Deputy Sheriff Harare was authorized to sign all necessary documents to effect cession; (3) The third respondent (Municipality of Chitungwiza) was ordered to approve the cession upon filing of all necessary documents; (4) The fourth to seventh respondents were ordered to bear the costs of suit jointly and severally.
Under s 6A of the Primary Courts Act 6 of 1981 (applicable to deaths before the Administration of Estates Amendment Act 6 of 1997), an heir at customary law succeeds to immovable property of an intestate deceased in his individual capacity as absolute owner, not in trust for family members. The heir is entitled to dispose of such property as he wishes. Family members claiming to be dependants have no enforceable real rights in the immovable property inherited by the heir and cannot enforce such claims against bona fide third-party purchasers. Their only recourse, if any, is a personal claim against the heir for support or alternative accommodation. A court order restraining disposal of property pending investigation into dependency does not deprive the heir/owner of legal capacity to sell the property, and such a sale, while potentially in contempt of court, may nevertheless be valid as against parties who have no superior legal rights to the property.
The court observed that the family members' view that the house should remain a family house exposed their lack of understanding of the law then obtaining. The court noted that they must be made to understand that the heir inherited the immovable property in his individual capacity and not on behalf of or in trust for the family. The court also noted that the Master's investigation (which was required to be conducted within 10 days but was delayed) ultimately revealed that the fourth to seventh respondents were not even dependants of the estate in any event, and most of them were not residing at the property at the time of the deceased's death.
This case reinforces the principle established in Seva v Dzuda regarding the nature of inheritance by an heir under customary law prior to the Administration of Estates Amendment Act 6 of 1997. It confirms that under the old law (s 6A of the Primary Courts Act 6 of 1981), an heir inherited immovable property in his individual capacity as absolute owner, not as a trustee for family members. The case clarifies that family members who claim to be dependants have no enforceable real rights against third-party purchasers who acquire property from the heir, and their only recourse, if any, is against the heir personally. It also demonstrates the limits of interdict orders that merely restrain disposal pending investigation - such orders do not deprive the owner of capacity to sell, and sales made in contravention may still be valid as against parties without superior legal rights.