INTRODUCTIONAt the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 ...
INTRODUCTION
At the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:
The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 (House of Sari (Pvt) Ltd) as the third appellant.
The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) in all the appeals remained as previously cited, with the Registrar of Deeds being the fourth respondent, though there was no appearance on his behalf.
Although there were three different appeals attacking the same judgment, I intend to address all the appeals in one composite judgment as the issues raised are similar.
In this judgment, I will also refer to the first appellant as 'the Master' the second appellant as 'the executor' the third appellant as 'the purchaser' and the first to third respondents as 'the beneficiaries'.
The three appeals herein are against judgment no. HH806-20 of the High Court ('court a quo') dated 16 December 2020, which granted an application to set aside “two consents of sale” issued by the Master of the High Court, agreements of sale signed between the executor and the purchaser, and finally set aside the transfer of title made in favour of the purchaser.
BACKGROUND FACTS
The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) are beneficiaries of the estate of the late Kudzai Takaendesa (the deceased), who died on 15 July 2015.
The second appellant (Rugare Mandima) was appointed as the executor of the estate in terms of a Will in which the deceased directed that the senior partner of Danziger and Partners be appointed as such upon her passing.
The estate comprised three farms being; certain piece of land situated in the District of Gatooma called Koppies measuring 1,358,0053 hectares; certain piece of land situated in the District of Hartley called Lorraine of Richmond measuring 595,5918 hectares; and certain piece of land situated in the District of Hartley called Remainder of Richmond measuring 679,7636 hectares ('the farms') and a butchery in Kwekwe situated at Stand 2040 Amaveni Township, Kwekwe.
The estate had liabilities amounting to USD$16,287=13 arising from administrative costs inclusive of the Master of the High Court's fees, Value Added Tax, advertising, valuation charges, and a provision for duty.
The executor, in the execution of his duties, requested the beneficiaries to settle the estate liabilities.
The beneficiaries only managed to pay USD$2,625 leaving a balance of USD$14,047 as at 10 January 2018.
Following the beneficiaries failure to settle the full amount, the executor wrote to the Master of the High Court, on 10 January 2018, seeking authority to sell the three farms by private treaty in order to liquidate the estate liability.
The Master of the High Court issued a consent to the sale in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Administration of Estates Act) on 25 January 2018 in respect of two farms known as Koppies measuring 1358,0053 hectares and Lorraine Richmond measuring 595,5918 hectares, and, on the 17 October 2019 in respect of the farm known as remainder of Richmond measuring 679,7636 hectares.
The consents were granted on condition that the executor would first communicate the decision to dispose the farms to the beneficiaries.
As a result of the “consents to sell” all three farms were sold to the purchaser represented by one Mr. Arafas Mtausi Gwaradzimba, who owns a neighbouring farm, for a total amount of USD$700,000.
On 12 March 2018, the beneficiaries wrote an email to the executor with an instruction that he should not sell the farms but that he should rather sell the butchery in Kwekwe to recover the estate liabilities.
On 20 July 2018, legal practitioners representing all the beneficiaries wrote to the executor objecting to the proposed sale of the farms on the basis that:
(i) Firstly, they did not consent to the sale of the farms; and
(ii) Secondly, that the proceeds from the sale of the Kwekwe butchery would be sufficient to settle the estate's liabilities.
This letter was copied to the Master of the High Court.
It was further alleged, that, the executor was advancing his own personal interest in insisting on the sale of the farms rather than the interests of the beneficiaries.
By letter dated 6 of August 2018, the Master of the High Court informed the beneficiaries that their objections had been noted, but, however, the consent to sale could not be revoked as the decision had already been made.
Dissatisfied by the Master of the High Court's decision to grant the executor's request for “consent to sell” the three farms, the beneficiaries made an application before the court a quo, in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Administrative Justice Act'), seeking the setting aside of the decision of the Master of the High Court on the basis that he acted unlawfully, unreasonably, and in an unfair manner in granting the consent.
DECISION OF THE COURT A QUO
The court a quo, in dealing with the application, held that the Master of the High Court failed to conduct a 'due inquiry' in accordance with section 120 of the Administration of Estates Act.
The court a quo further held, that, the decision to issue the “consent to sell” the three farms, without holding an inquiry in terms of section 120 of the Administration of Estates Act, was illogical and grossly unreasonable.
The court a quo reasoned, that, the Master ought to have enquired into the propriety or otherwise of the sale of the three farms in light of other possible assets that could have been sold, and whether or not it was in the best interest of the beneficiaries to sell the farms.
The court found that the Master of the High Court ought to have granted the beneficiaries an opportunity to be heard before making his decision.
The court a quo accordingly found, that, as section 120 of the Administration of Estates Act had not been complied with, the decision by the Master of the High Court, authorising the executor to sell the three farms, was unlawful, unreasonable, and unfair.
It also found that the sales of the farms were a nullity and ordered that they be set aside.
The court consequently vacated the agreements of sale entered into between the executor and the purchaser.
It set aside the consents to the sales of the farms issued by the Master of the High Court, cancelled the transfers of the farms, and ordered the resuscitation of the Estate Deed of Transfer Number 6708/2019 back into the deceased's estate.
With regards to costs, the court ordered that the Master of the High Court and the purchaser pay the beneficiaries costs on a party and party scale with the executor being ordered to pay costs de bonis propriis on the basis that there was collusion between him and the purchaser.
Aggrieved by the decision of the court a quo, the three appellants each noted separate appeals attacking the judgment, essentially on the basis that it erred in failing to find that the Master of the High Court's decision was properly made after due compliance with the Administration of Estates Act.
ISSUES FOR DETERMINATION
An examination of the grounds of appeal shows, that, the single thread that runs through the three appeals is the question of whether or not the Master of the High Court complied with the provisions of section 120 of the Administration of Estates Act before issuing the “consent to sell” the three farms.
SUBMISSIONS BEFORE THIS COURT
Counsel for the first appellant argued, that, the Master of the High Court had no real interest in this case and was essentially a passenger in the litigation. This was, so the argument went, because once he had made a decision in respect of the sale of the three farms, he became functus officio.
He contended, that, the Master of the High Court reached the decision to “consent to the sales” after due consideration of the facts of the case as placed before him by the executor.
It was his submission, that, section 120 of the Administration of Estates Act does not place an obligation on the Master of the High Court to carry out a judicial investigation before issuing a “consent to sell”. He asserted that the inquiry which must be conducted by the Master merely related to whether or not there are any restrictions to sell that may be contained in the Will of the deceased. He thus submitted that it was a very limited inquiry.
Counsel for the first appellant further asserted, that, there was nothing unlawful about issuing a consent with a condition that the executor must inform beneficiaries about the sale.
He, however, conceded that the absence of consent to sale at the time when the agreement of sale was executed in respect of the third farm meant that the agreement was void as there was no condition in the agreement stating that the agreement would only become perfecta once the consent from the Master of the High Court on the third farm had been obtained.
In the final analysis, he submitted that the decision by the Master was not unreasonable or unfair in the circumstances because the finalisation of the estate had been outstanding for a long time.
Further, that the order of costs made against the Master of the High Court was unwarranted and ought to be set aside as the decision was made in the course of his administrative functions.
He prayed for the appeal to be allowed with costs.
Counsel for the executor argued, that, the Master of the High Court correctly exercised his discretion in granting the “consent to the sale” based on the documentation placed before him.
He asserted that there was nothing unreasonable or unfair about the Master of the High Court's decision to “consent to the sale” of the three farms as he acted in accordance with the law.
Counsel also submitted, that, the phrase 'due inquiry' under section 120 of the Administration of Estates Act is limited only to the question of the mode of disposal of the property and not to any other issue.
He argued, that, the order of costs de bonis propriis made against the executor was improper because the order was not sought by the applicants a quo but was imposed by the court, without inquiry, as required by law.
He therefore prayed for the appeal to succeed.
Counsel for the purchaser submitted, that, the beneficiaries could not challenge the sale of the farms without surrendering the proceeds of sale that had been transferred into their accounts.
He argued, that, the due inquiry in terms of section 120 of the Administration of Estates Act is restricted only to the question of whether to sell by private treaty or public auction.
He asserted, that, the Master of the High Court's decision was lawful. He thus prayed for the appeal to be allowed.
Per contra, counsel for the beneficiaries submitted, that, the Master of the High Court's decision violated section 68 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as 'the Constitution') and section 3 of the Administrative Justice Act.
She contended, that, the Master of the High Court's decision, to sell three farms for USD$700,000 to settle estate liabilities totalling USD$14,047 when other properties of less value could have been sold, was grossly unreasonable and unfair.
Counsel submitted that due inquiry, as interpreted in past decisions of the courts, is not a superficial inquiry but meant an informed, independent inquiry that involves considering the submissions of beneficiaries of the estate.
She asserted, that, in this case, no due inquiry was done and thus both the Master of the High Court and the executor did not ultimately act in the best interests of the beneficiaries of the estate as mandated by the law.
She further argued, that, the order of costs made against the Master of the High Court and the executor were justified because both acted unlawfully, unreasonably, and unfairly.
In the result, she prayed for the appeal to be dismissed.
ANALYSIS
With regards to costs a quo..., I take the further view, that, it is trite that a court may not make an award of costs de bonis propriis unless they have been sought and the person affected has been given an opportunity to be heard.
The executor was not heard on this point a quo.
This award cannot be upheld and warrants interference by this Court.
