The Estate Late Godfrey Madamombe (Represented by Angela Madamombe, Executrix Dative) v Tawanda Mike Matani and The Registrar of Deeds, Bulawayo

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HB 141/25
HCBC 798/24
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THE ESTATE LATE GODFREY MADAMOMBE
(Represented by Angela Madamombe, Executrix Dative)

Versus

TAWANDA MIKE MATANI

And

THE REGISTRAR OF DEEDS, BULAWAYO

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 13 FEBRUARY 2025

J Sibanda for the Applicant

P. Tembo for the 1st Respondent

NDUNA J

This case involves a dispute over the transfer of property formerly owned by the late Godfrey Madamombe, who died on 25 July 2017. Before his death, Mr. Madamombe signed a power of attorney on 17 November 2016, authorising conveyancers to transfer the property to the 1st Respondent, Tawanda Malani, pursuant to a sale agreement. However, the actual deed of transfer was registered after his death.

FACTUAL BACKGROUND

The Applicant, Angela Madamombe, argues that the power of attorney lapsed upon her father's death, making the posthumous transfer legally invalid. She also contends that the sale was only for one acre of land valued at USD 18 000, not the entire property, as reflected in the deed. She further claims the Respondent failed to specifically deny these material facts in his opposing affidavit, as required by court rules.

The Respondent maintains that the sale was concluded during the deceased’s lifetime and that the conveyancer was unaware of the death. He argues that the transfer should stand and accuses the Applicant of being overly legalistic. It is undisputed that the Respondent attended the deceased’s funeral, raising questions about his claim of ignorance. He also used the transferred property as loan security, putting the estate at risk.

The Applicant also raises concerns about the deceased’s health at the time of signing and accuses the Respondent of refusing to engage with the family before litigation.

ISSUE FOR DETERMINATION

The central issue is whether the power of attorney remained valid after death and whether the Respondent had any lawful basis for transfer without involving the estate’s executor.

Top of Form

THE LAW Bottom of Form

At common law, a power of attorney lapses on the death of the principal. This rule was reaffirmed in Trevor Thomas Keys NO v Chris Ellinas & Ors SA 2013/62385, where the court held:

“By reason of the foregoing, I come to the conclusion that the transfer of ownership in the property to Jango, that purportedly took place on 11 May 2010, was null and void. This conclusion is based on four grounds. First, the power of attorney granted to Chris by Angela, and the derivative power given by Chris to the conveyancer was terminated on Angela's death by operation of the general principle that the authority delegated was dependent on the continuous will of Angela which ceased to exist upon her death. Secondly, the power of attorney cannot be considered as one "coupled with an interest" and in any event, any such power, short of the transfer of a property right to Chris, is not irrevocable and thus is subject to the application of the general principle I have referred to”.

The case further clarified that a power of attorney cannot be considered as one “coupled with an interest” unless the recipient of the power held an independent, proprietary interest in the subject matter, not merely a right to derive benefit from the exercise of the power. This was further echoed in the United States case of Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 696 (1944) Rutledge J, dissenting stated that

“In all normal agency relations, except those ‘coupled with an interest,’ the principal can revoke them by exercising the agency himself.”

It is clear that the power of attorney is revoked by death of principal unless it is coupled with an interest. The case of Chevron South Africa (Pty) Ltd v Ufadu Transport (Pty) Ltd and Others 2010/14665 (OJ), on para 26 clearly explains this distinction where  it was held that,

“This case identifies two principal propositions.  The first is that where a power is exercised for and behalf of a principal, the recipient of the power is a substitute who cannot perform an act which the principal cannot perform.  Thus where the principal dies so does the power.  The second is the identification of the interest by drawing a distinction between an interest in the subject on which the power is to be exercised; a power “engrafted on an estate in the thing” as opposed to an interest in that which is produced by the exercise of the power.  The former interest is a real right held, by the recipient as a principal, in the property, on which the power is to be exercised, and not merely as a substitute.  The latter interest is one which arises as a consequence of exercising a power when acting as a substitute for the principal.  The importance of this distinction is the logical consequence that where the power is “coupled with an interest”,the exercise of that power by the recipient is as a principal and not as a substitute for another person.  In this case the power runs with the interest; it is an incident of the interest”.

APPLICATION OF THE LAW

Applying these principles to the facts of the present case, it becomes apparent that the Respondent did not, at the time of the late Madamombe’s death, hold any proprietary interest in the subject property. His only claim arose from an alleged agreement of sale, whose terms are themselves in dispute and which the Respondent did not seek to enforce through the proper channels of estate administration.

The fact that the Respondent had made payments toward the purchase price, or that he may have been in occupation of part of the land, does not transform his position from that of a buyer under contract to a person with a vested interest in the subject matter of the power of attorney. As such, he remained a substitute for the principal, acting only as long as the principal’s will remained legally operative. That will, by the settled law of agency, ceased to exist upon Mr. Madamombe’s death, thereby terminating the authority granted to the conveyancer.

Even more compelling is the fact that the Respondent did not act through the executor of the estate to perfect his claim. The Administration of Estates Act [Chapter 6:01], Section 23 provides:

“The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the form B in the Second Schedule by the Master to the testamentary executors duly appointed by such deceased persons, or to such persons as shall, in default of testamentary executors, be appointed executors dative to such deceased persons in manner”

This position of Zimbabwean law up to date is held in In Clarke v Barnacle NO & Ors 1958 R&N 358 (SR) at 349B -350A Morton J stated that

“whether testate or intestate, an executor, either testamentary or dative, must be appointed…..so that the executor and he alone is looked upon as the person to represent the estate of the deceased person.”

Upon the death of a person, all rights, duties, and liabilities devolve upon the duly appointed executor. In the absence of such an appointment, no third party has the authority to effect a transfer of property on behalf of the deceased. Therefore, even if the sale agreement had been valid and enforceable, it could only have been perfected through the executor, not through a power of attorney that had lapsed at death.

The court must also consider the equities of allowing a deed of transfer to stand in the face of such procedural and substantive irregularities. To uphold a transfer based on a lapsed authority is to sanction a violation of the legal requirement that property rights be transferred only in accordance with valid, subsisting authority. It would create a dangerous precedent, encouraging buyers to bypass estate procedures by relying on expired mandates. Moreover, any suggestion that the Respondent’s reliance on the power of attorney was in good faith is undermined by the Applicant’s uncontroverted evidence that the Respondent attended the deceased’s funeral and was thus aware of his death.

The court is satisfied that the power of attorney was not coupled with an interest in the legal sense. The Respondent had no pre-existing proprietary right in the subject matter of the power. His interest was purely contractual and dependent on performance, and such interest does not survive the death of the granter. As a result, the conveyancer had no legal basis to act under the authority of the deceased. Consequently, the resultant deed of transfer is null and void

Given the invalidity of the power of attorney, it is unnecessary to address the issue of whether the sale was fraudulent, as this point is dispositive of the matter.

DISPOSITION

The court finds that the deed of transfer issued in favour of the Respondent must be cancelled. The power of attorney used to effect the transfer had lapsed on the death of the principal, and no exceptional circumstances exist to preserve its validity. The Respondent remains at liberty to assert his rights, if any, through the proper administration of the estate. However, he cannot rely on a power of attorney which is null and void.

ORDER

The Deed of Transfer registered in favour of the 1st Respondent is hereby declared null and void and is set aside.

The Registrar of Deeds is directed to cancel the title deed issued pursuant to the invalid power of attorney.

The first Respondent shall pay the costs of suit on the legal practitioner and client scale.

Job Sibanda and Associates Legal Practitioners applicant’s legal practitioners

Garikai and Company Legal Practitioners First Respondent’s legal practitioners