GAMA NO v MPOFU & ORS

HIGH COURT, BULAWAYO

[Opposed Application HB 84-16]

March 10 and 18, 2016

MATHONSI J

Family law  –  Succession  –  Registration of deceased estate  –  Purported second registration null and void.

The applicant sought a declaratur that a second registration of a deceased estate was unlawful and therefore null and void.

Held, that when the first respondent purported to inherit the property and to wind up the estate of his late mother, the estate had already been dealt with and the house in question had already been inherited. The purported registration of the estate, inheritance by the first respondent and everything else that flowed from it was a nullity. There was no longer an estate to be dealt with that way.

Cases cited:

Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning & Social Welfare & Ors 1988 (2) ZLR 129 (H), referred to

Chaumba v Chaumba 2002 (2) ZLR 51 (S), referred to

Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (H), referred to

MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 All ER 1169 (PC), applied

Mpofu v Mlavu & Ors HB 17-16 (unreported), referred to

Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S), referred to

Nyathi & Anor v Ncube NO & Ors 2011 (2) ZLR 156 (H), referred to

Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S), followed

Legislation considered:

Administration of Estates Act [Chapter 6:01], ss 3, 120

Deceased Estates Succession Act [Chapter 6:02], s 3A

High Court Act [Chapter 7:06], s 14

Marriage Act [Chapter 5:11]

High Court Rules, 1971 (RGN 1047 of 1971), O 32 r 248

ZC Ncube, for the applicant

Second respondent in person

No appearance for first and third respondents

MATHONSI J:

In this matter two deceased estates, one for the late Mishack Nyathi and the other for the late Kuyibisa Masuku, who were married to each other on 4 November 1997 in terms of the Marriage Act [Chapter 5:11], are now fighting each other with the other respondents being mere casualties in a winding up process that went horribly wrong.

The late Kuyibisa Masuku died intestate in 1997 at a time that she was married to the late Mishack Nyathi aforesaid. Her estate was registered by the fifth respondent as DRB 2249/97. The late Mishack Nyathi who survived his wife was then issued with a certificate of authority by the fifth respondent on 21 April 1998 in terms of the provisions of the Administration of Estates Act [Chapter 6:01] to administer and distribute his late wife’s estate and in particular to “deal with and take over the house in Bulawayo”.

Armed with the certificate of authority to take over the house, Nyathi must have thought that all was over. He did not proceed to take transfer of the house he had inherited in accordance with the law until nature caught up with him as well. He died intestate on 21 May 2005. His estate was registered by the fifth respondent as DRB No. 802/05 and the present applicant was appointed executor of the estate.

Meanwhile something strange was also happening at the fourth respondent’s office, that is, the Additional Assistant Master whose office is subservient to that of the fifth respondent. 15 (fifteen) years after the estate of the late Kuyibisa Masuku was registered and the late Mishack Nyathi inherited the estate as the surviving spouse, the first respondent approached the fourth respondent’s office and purported to register that estate anew. The fourth respondent obliged and registered the estate as DRBY No. 689/12. Unbeknown to the fourth respondent, not only had the estate been registered by the fifth respondent and the late Nyathi inherited it, the estate in question fell to be administered only by the fifth respondent and not the fourth respondent who deals only with estates governed by customary law because the deceased was married in terms of general law.

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