Panganai v Malenga (REF Rusape 901 of 2013) [2015] ZWHHC 527 (10 June 2015)

1 HH 527-15 CIV ‘A’ 150/14 Ref Case No. Rusape 901/13 ESTELL PANGANAI versus MATTHEW E MALENGA HIGH COURT OF ZIMBABWE UCHENA & MWAYERA JJ HARARE, 26 March, 2 April, and 11 June 2015 Civil Appeal M C Mandava, for the appellant Respondent in Person UCHENA J: The appellant is the late Violet Madondo’s brother’s son’s wife. She came to stay at the house in dispute on the basis that the late Violet Madondo had during her illness, told her that she was the one who would stay at that house after her death. The respondent, is the son of the late Anderson Ephraim’s daughter from a previous marriage. The late Anderson Ephraim was the late Violet Madondo’s husband. Violet did not have any children of her own. The appellant believes that her property must be inherited by members of the Madziwa family. The respondent stayed with his now late grandfather and step grand-mother. When his late grandfather died he continued staying with his now late step grandmother until her death after which the appellant came to stay at the homestead in dispute. He applied for the appellant’s eviction in the court aquo, which was granted. The appellant appealed against that order. Mr Mandava for the appellant relied among other grounds of appeal on the following grounds which establish that the issues between the parties are over the inheritance of the deceased’s property. The relevant grounds of appeal are; 1. The court aquo erred at law in finding that the land in question now belonged to the Ephraim family because it was registered in Anderson Ephraim’s name. The court employed a scientific, sophisticated approach and took an armchair approach analysing an acquisition that was done by a lay woman who could possibly not understand the import of registration and significances on ownership of registration and of name under which to register the land. HH 527-15 CIV ‘A’ 150/14 Ref Case No. Rusape 901/13 2. The court aquo erred at law in failing to recognize that there was no relationship between the Respondent and the Madziwa family such that upon the death of Violet Madondo ownership of the land was supposed to revert to the Madziwa family. The above clearly establish that the dispute, between the appellant and the respondent is over property which belongs to a deceased estate. It was brought before the court aquo by way of summons for eviction, whose particulars of claim 1 to 8 should have alerted the trial magistrate that he was being asked to determine a dispute over deceased estate property when the estate had not been registered. The respondent’s particulars of claim, 1 to 8 reads as follows; 1. I am an orphan born 26 December 1980 and since 2010 I was staying with my grandfather Anderson Ephraim and grandmother Violet Ephraim. 2. Unfortunately my grandparents passed away in 2010 and 2011 respectively. 3. My life was shattered and I had to carry on with life staying at my late grand parents’ home with my wife. 4. Sometime in December 2011 Estell Panganayi came to my homestead claiming she is a relative of my late grandmother. 5. I had never known Estell Panganayi who informed me that she had come to prepare for my late grandmother’s memorial service. 6. The said memorial service was never done to date. 7. On 21/09/2013 Panganayi made a u turn now saying she was there to stay permanently. 8. She claimed that she was given authority to stay by my late grandmother.” These particulars of claim clearly establish that the dispute was over deceased estate property which in terms of, sections 5, 14 and 15 of the Administration of Deceased Estates Act [Chapter 6:01]; the respondent should have report the death of his grandparents and submitted the inventory of the property they left behind, to the Master of The High Court. Section 5 provides as follows; “5 (1) Whenever any person dies leaving any property in possession, reversion or expectancy or leaving a will, the nearest relative or connection of the deceased who is at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall, within fourteen days thereafter, cause a notice of death to be framed in the form A in the Second Schedule, and shall cause that notice, signed by himself, to be delivered or transmitted— (a) if the death occurs in Harare or the district thereof, to the Master; (b) if the death occurs in Bulawayo or the district thereof, to the Assistant Master; (c) if the death occurs in any other district, to the magistrate for that district.” Section 5 clearly compels the nearest relative of a person who dies leaving any property to report that death to the Master or officials of his office as detailed in section 5 (1) HH 527-15 CIV ‘A’ 150/14 Ref Case No. Rusape 901/13 (a) to (c ). Sections 14 and 15 of the Act, requires persons who should report the deceased’s death to the Master to also compile an inventory of the deceased’s property and forward it to the Master. They provide as follows; “14 (1) On the death of any person not being one of two spouses married in community of property, the wife or husband of the deceased or, in default or absence of the wife or husband, the child or children of the deceased or, in default, absence or minority of the child or children, the next of kin of the deceased or, in default, absence or minority of the next of kin, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall, within fourteen days after the death, make or cause to be made in the presence of two impartial witnesses, being persons of good credit and repute, an inventory of all goods and effects belonging to the deceased and being in the house or upon the premises at the time of death, and of all other goods and effects known by the person making such inventory or causing such inventory to be made to have belonged to the deceased. (2) Every such inventory shall be subscribed by the person making or causing the same to be made and by the witnesses aforesaid. (3) Any person who fails to make an inventory in terms of this section or to cause such an inventory to be made shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment. 15 (1) Every person hereinbefore required or directed to make, or cause to be made, any such inventory as aforesaid shall, so soon as the same has been made, forthwith deliver or transmit every such inventory— (a) if such person resides in Harare or the district thereof, to the Master; (b) if such person resides in Bulawayo or the district thereof, to the Assistant Master; (c) if such person resides in any other district, to the magistrate.” The law therefore requires the relatives of the deceased to report the death of a person who leaves behind any property to the Master and to safe guard and record in an inventory to be submitted to the Master the property of the deceased, which upon the death of the deceased becomes the property of the deceased’s estate. It is unfortunate that the respondent and the appellant are fighting over the deceased’s property instead of reporting the death of the owners of that property to the Master to whom they should also have submitted an inventory of the deceased’s property. The trial Magistrate who should have guided them in terms of the law, failed to realise that he was dealing with a deceased estate whose property had to be dealt with through an executor, further erred when he in his judgment said; “According to Shona custom if a husband dies the wife is not chased away she will continue staying there until she dies after her death the children will continue staying there or relatives of the husband can stay there. It remains the homestead of the husband” HH 527-15 CIV ‘A’ 150/14 Ref Case No. Rusape 901/13 The court aquo erred by granting inheritance rights to the respondent. If he has such rights they can only be granted by the Master through the confirmation of an Executor’s distribution account. As things stand neither party has and can claim any rights outside the proper administration of the deceased’s estate. In determining the case as he did the Magistrate clearly demonstrates that he was aware that he was dealing with a deceased estate but failed to realise by whom and how a deceased person’s property should be dealt with. If he had he would have realised that he had no jurisdiction to hear and determine the dispute between the appellant and the respondent. He should have guided the parties to comply with sections 5, 14 and 15 of the Act, after which the deceased persons’ estates could have been dealt with by the Master, through Executors he would have appointed to administer the estates. In view of the above I find that the Magistrate had no jurisdiction to preside over the appellant’s eviction from the property of deceased estates before the registration and administration of the estates. The court aquo should therefore not have usurped the functions of the Master and his officials. He should have simply referred the parties to the provisions of section 5 (1) of the Act. I am therefore satisfied that the court aquo erred in usurping the functions of the Master’s office. Its decision must therefore be set aside. Each party should bear its own costs as this case came this far because of the Magistrate’s failure to decline jurisdiction and guiding the parties as to how their dispute could be resolved through the administration of the deceased persons’ estates. I therefore order as follows; 1. The order granted by the court aquo is set aside. 2. The respondent is ordered to report the death of Anderson Ephraim and Violet Madondo to the Master of the High Court in terms of sections 5, 14 and 15 of the Administration of Deceased Estates Act. 3. Each party shall bear his or her own costs. MWAYERA J agrees …………………… Legal Aid Directorate, appellant’s legal practitioners