Josephina Munyoro (Nee Musiyiwa) (In her capacity as the Executor of the Estate Late Ambrose Jeremiah Musiyiwa DR 675/83) v Eusebia Musiyiwa N.O (In her capacity as the Executor of the Estate late Stephen Musiyiwa DR 1962/16) and The Master of the High Court of Zimbabwe N.O

### Preamble
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HH 607 - 25
HCH 3004/25
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JOSEPHINA MUNYORO (Nee MUSIYIWA)

(In her capacity as the Executor of the Estate Late Ambrose Jeremiah Musiyiwa DR 675/83)

versus

EUSEBIA MUSIYIWA N.O

(In her capacity as the Executor of the Estate late Stephen Musiyiwa DR 1962/16)

and

THE MASTER OF THE HIGH COURT OF ZIMBABWE N.O

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 2 & 7 October 2025

Actio Communi Dividundo

G. Makina, for the applicant

T Deme, for the 1st respondent

MAMBARA J:    This is an opposed application for the termination of joint ownership of immovable property by way of the actio communi dividundo. The property in question is Stand 287 Unit G, Seke, Chitungwiza (“the property”). It was jointly allocated, under an interim distribution plan approved by the Master of the High Court, to Estate Late Ambrose Jeremiah Musiyiwa (represented by Josephine Munyoro, the first applicant and executrix of that estate) and Estate Late Stephen Musiyiwa (represented by Eusebia Musiyiwa, the first Respondent). Both deceased estates thus hold the property in equal, undivided shares pursuant to the Master’s distribution plan. The applicant now seeks an order terminating this co-ownership – effectively a partition by sale – so that the proceeds may be divided between the two estates in accordance with their shares.

The first respondent opposes the application on several grounds. She contends that as the property is an asset in a deceased estate, it cannot be sold before the estate is fully wound up. She further alleges that the interim distribution plan was fraudulently obtained by the applicant and is not binding. That the applicant is approaching the court with “unclean hands.” Lastly, although not clearly articulated, the respondent hints that the matter is res judicata – implying that some other prior proceeding, precludes the present application. The court must determine:

whether the Master-approved interim distribution plan is legally valid and final regarding the ownership of the property,

whether the respondent’s defences of res judicata and “dirty hands” have merit, and

whether, in law, a co-owner (even one holding an unregistered interest via a deceased estate) may seek termination of joint ownership under the actio communi dividundo, including the sale of the property and distribution of proceeds.

The Actio Communi Dividundo and Co-owners’ Rights

It is trite in our law that no co-owner is ordinarily obliged to remain in co-ownership against his or her will. The actio communi dividundo is the common-law remedy available to co-owners to achieve a division of their joint property when they cannot agree on how to do so. As stated by Joubert JA in the leading South African case of Robson v Theron 1978 (1) SA 841 (A), the actio communi dividundo has a twofold purpose: “to claim division of joint property, and payment of praestationes personales (personal payments) relating to profits enjoyed or expenses incurred in connection with the joint property”. In other words, the action not only enables partition of the property, but also a fair accounting between the co-owners upon division.

Our courts have embraced these principles as part of Zimbabwean common law. In Bennett N.O. v Le Roux 1983 (2) ZLR 301 (H), Pittman J confirmed that when joint owners fail to agree on the disposal of indivisible property, the court may be approached to terminate the co-ownership. The court’s task is to make an order for division that is just and equitable in the circumstances, exercising a wide discretion. The court may, for example, order that one co-owner buys out the other’s share, or that the property be sold by private treaty or public auction with the net proceeds divided between the co-owners according to their shares. In Estate Rother v Estate Sandig 1943 AD 47, it was observed that this discretion allows tailoring the relief to the case’s needs – even where the co-owners are deceased estates represented by executors.

Fundamentally, co-ownership is not a permanent bondage. As Kudya J summarized in Bakaris v Kattavenos HH 1-09, the common law principles are that any co-owner of a tangible thing held jointly – whether the co-owners are partners, spouses, or in any other relationship – may invoke the actio communi dividundo to obtain a division of the property when consensual agreement fails. It does not matter if one or both co-owners are in possession of the property or even if the co-owners derived their title through estates. What matters is that they hold the property jointly and one desires partition. Courts will not force an unwilling co-owner to remain tied to the asset indefinitely. As a corollary, each co-owner has a right to realize the value of their share. Where physical partition is impossible or impractical, as is often the case with a single residential stand, a sale of the property and division of the proceeds is the typical relief, unless one co-owner can buy out the other.

In the present case, it is common cause that the two estates are co-owners of an indivisible residential stand. The applicant, on behalf of Estate Ambrose, wishes to realize that estate’s 50% share. The first respondent, on behalf of Estate Stephen, refuses to consent. This deadlock squarely invokes the actio communi dividundo. The applicant’s locus standi to bring this action as a co-owner is clear – she stands in the shoes of one of the joint owners (Ambrose’s estate). Likewise, the first respondent represents the other joint owner. There is no legal requirement that the joint owners be natural persons. An executor or estate holding an undivided share is fully entitled to seek partition on behalf of the beneficiaries of that estate.

Validity of the Master’s Interim Distribution Plan

A significant point of contention is the interim distribution plan approved by the Master of the High Court, which allocated the property jointly to the two estates. The first respondent attacks this plan as having been “fraudulently obtained” by the applicant, and suggests it cannot be relied upon. It is important to clarify the legal status of this plan.

Under the Administration of Estates Act [Chapter 6:01], an executor is obliged to file an estate distribution account, which – once approved by the Master and after due notice to interested parties – becomes final and binding unless upset on review or appeal. In this case, an “interim” distribution account was approved, meaning the Master sanctioned a provisional scheme of distribution of some assets (including the property). Despite the label “interim,” such an approved plan has legal force. In particular, the allocation of the immovable property to the two estates is a final administrative determination of their respective entitlements to that property, absent a successful challenge. The respondent does not aver that she ever lodged a formal objection with the Master or sought a review by the High Court of that distribution. Her allegation of fraud is raised for the first time in these proceedings as a collateral challenge to the plan.

It is well established that a confirmed estate distribution account (even an interim one) is presumed valid and enforceable until it is set aside by a competent authority. In the absence of a timeous objection or evidence of a patent irregularity, the Master’s confirmation of the plan means that ex lege each estate has a vested half-share in the property. The first respondent’s mere claim of fraud – unsupported by any cogent evidence – does not nullify the plan. Fraud is a serious allegation that requires proof on a balance of probabilities. Here, no such proof has been tendered. There is no affidavit from the Master or other evidence indicating that the plan was improperly procured. Allegations of fraud cannot be blithely accepted. They must be proven with specificity and clarity. In the context of estates, if the first respondent truly believed the plan was fraudulent, the remedy was to apply for its rectification or nullification through the Master’s office or the courts. She has not done so. Therefore, the interim distribution plan stands as a legally valid document. For purposes of these proceedings, this court must treat the property as jointly owned 50/50 by the two estates, as per the Master’s allocation.

It follows that the first respondent’s argument that the property is “estate property” that cannot be dealt with is misconceived. Yes, it is an estate asset – in fact it is an asset in two estates – but both estates have accepted and finalized their respective shares in that asset by way of the approved plan. The property is no longer residual estate awaiting determination of heirs; it has been specifically earmarked and shared between two defined owners (the estates). The role of the executor now is simply to give effect to that plan, which may include transferring the property to beneficiaries or selling it to distribute cash. In short, the plan conclusively established each estate’s beneficial interest in the property. This provides the foundation for the applicant’s actio communi dividundo claim.

The Respondent’s Defences

In limine, the first respondent raised a plea of res judicata. She contends that the dispute has already been determined in prior proceedings between the parties. In particular, the first respondent refers to Magistrates’ Court Case No. CHCR 514/24 (Chitungwiza), in which the applicant sought a mandamus compelling the estate of the late Stephen Musiyiwa to buy out her half share in the property. It is common cause that the magistrates’ court granted that order; however, on appeal to this Court (Case No. HCH 984/25), the High Court overturned the magistrate’s decision and set aside the mandamus. The first respondent submits that the present application involves the same parties, subject matter and relief, and is therefore barred by res judicata.

The applicant disputes the applicability of res judicata in this case, maintaining that the cause of action now before the Court is substantively and procedurally different from that in the magistrates’ court. She points out that the mandamus in CHCR 514/24 was a procedural remedy to compel a buy-out of her share, whereas the current proceedings are brought by way of an actio communi dividundo, which is a substantive legal action to terminate co-ownership and divide the property. The relief now sought – a sale of the jointly owned property and division of the proceeds – is not the same as a compelled buy-out. Accordingly, the applicant argues that the requirements for res judicata (in particular, identity of cause of action and relief) are not met. The Court accepts the applicant’s position that the actio communi dividundo is a distinct cause of action from the prior mandamus application. The res judicata plea cannot be sustained in the circumstances, and the matter is properly before this Court.

The Supreme Court’s decision in Banda & Ors v ZISCO 1999 (1) ZLR 340 (S) is instructive. A prior decision will only bar a later proceeding if all the requirements of res judicata are met. Here, there is no prior court decision on this cause of action at all. Accordingly, the plea of res judicata is plainly misapplied.

Additionally, the first respondent asserts that the applicant comes to court with unclean hands – colloquially, “dirty hands.” She alleges that the applicant resorted to self-help by unlawfully and forcibly taking occupation of the house in question. According to the first respondent, the applicant ousted her from the property and installed tenants on the premises, from whom the applicant is collecting rentals for her own benefit. The first respondent argues that by virtue of this conduct, the applicant should be denied relief until she purges her wrongdoing.

The applicant disputes this version of events and denies any unlawful conduct. She avers that when she assumed control of the property, no force or illegality was employed. In her account, certain rooms at the house were vacant, and she took possession of those portions with the consent of existing occupants, even using keys provided voluntarily by the tenants. She maintains that she has managed the property only in her capacity as a co-owner and as the executor of her late brother’s estate, and not in defiance of the law. Given these diametrically opposed narratives, the Court notes the allegations on both sides but makes no definitive finding of fact on the “dirty hands” plea. The respective contentions of the parties are acknowledged; however, no determination is made in this judgment as to the lawfulness or otherwise of the applicant’s occupation of the property.

It is true that Zimbabwean courts following common law and equitable principles have held that a party cannot seek the court’s assistance while in wilful disregard of the law or of court orders. The so-called dirty hands principle was notably applied in cases of contempt of court or fugitives from justice. For example, a litigant in contempt will generally not be heard until they have purged their contempt. In Deputy Sheriff, Harare v Mahleza 1997 (2) ZLR 425 and other cases, courts emphasized that one must approach the court with clean hands, especially where one’s own conduct impedes the administration of justice. As Greenland J explained in Sabawu v Harare West rural Council 1989 (1) ZLR 47, a person who defies a court order is in contempt and “no application to court by such person will be entertained until he has purged himself of his contempt”. This rule exists to uphold the dignity of the courts and the rule of law. However – crucially – the doctrine is not a rigid, immutable bar. The court retains a discretion and will not lightly deny a party a hearing except in the clearest cases of abuse.

In the present matter, the respondent’s attempt to invoke “dirty hands” is misplaced for several reasons. First, the applicant is not in defiance of any court order. There is no suggestion that she is a contemnor or a fugitive from justice. The allegation is that she unlawfully and forcibly took occupation of the property. Even if that were true (it remains unproven), it is not equivalent to the kind of ongoing contempt of court that traditionally triggers the dirty hands bar. As Denning LJ cautioned in Hadkinson v Hadkinson (1952) 2 All ER 567 (CA), refusing to hear a party is a drastic step only justified where the litigant’s contempt “impedes the course of justice” and there is no other effective means to ensure compliance. Here, there is no contempt at all. The respondent essentially asks this Court to pre-judge the “invasion” of the premises allegation and penalize the applicant by shutting the courthouse door. That would be an extreme and unwarranted application of the doctrine.

The “unclean hands” maxim in equity generally applies to equitable relief. The applicant, however, asserts a legal right anchored in common law – the right to terminate co-ownership. The relief sought (judicial partition by sale) is not a discretionary indulgence or an equitable remedy akin to interdict or specific performance where a court might weigh the parties’ conduct; rather, it is the enforcement of a well-established property right. Our courts have noted that while equity can deny relief to a plaintiff with egregiously immoral conduct in certain cases, it is not every allegation of impropriety that will divest a litigant of the right to be heard. The Mulligan v Mulligan case (1925 WLD 164), often cited on this doctrine, involved a fugitive from justice seeking civil relief – clearly an abuse the court refused to countenance. By contrast, in Minister of Home Affairs v Bickle 1983 (1) ZLR 99 (S) the Supreme Court (Fieldsend CJ) warned that save in the most exceptional circumstances, courts should not deny a litigant access to justice, for “[i]t is a strong thing for a court to refuse to hear a party…and only to be justified by grave considerations of public policy”. This reflects our constitutional ethos that every person is entitled to protection of the law and a fair hearing.

The allegation of fraud in obtaining the Master’s plan remains just that – an allegation. No court has found the applicant guilty of fraud or dishonesty. Denying a hearing based on a disputed accusation (which the applicant denies) would itself offend against natural justice. It would assume guilt without trial. The respondent essentially asks the Court to punish the applicant by withholding relief, yet the proper course – if fraud is truly suspected – would be for the respondent to lead evidence and seek nullification of the Master’s decision through a substantive application. Until and unless the applicant is found to have acted fraudulently, the court will not infer “unclean hands.” Mere unproven allegations cannot suffice to disqualify a litigant.

In sum, the dirty hands doctrine does not apply in the circumstances here. The applicant is not flouting any law in bringing this application. To the contrary, she is exercising a lawful remedy. There is no impediment to the court hearing her. The court accordingly dismisses the “unclean hands” defence. Should it later emerge in appropriate proceedings that the interim distribution was fraudulently obtained (a matter on which this Court expresses no view), that may be dealt with at that time. It cannot be used as a talisman to ward off an otherwise meritorious claim. The court will not lightly deprive a party of the right to be heard even if that party is alleged to have sinned. Justice must be served based on proven facts. Here justice demands that the applicant’s claim be determined on the merits.

Sale of an Unregistered Interest – Legal Considerations

The respondent’s argument that the property “cannot be sold before the estate is wound up” appears to be based on a misconception that because the property is still registered in the name of a deceased or in the joint names of the deceased persons’ representative, it must remain unsold until final winding-up. There is no absolute rule in our law prohibiting the sale of estate assets before an estate’s completion. In fact, the Administration of Estates Act anticipates that executors will often sell assets in the course of winding up – for example, to pay debts or to distribute the estate in cash to multiple heirs. See Olga Ross: “A Guide for Beneficiaries Of Deceased Estates” Lupicinio International Law Firm, 2025 (honeyb.co.zw).

What the law requires is proper oversight. usually, either the consent of interested beneficiaries or the authority of the Master (or the court) for such sales, to ensure the estate’s interests are protected. In this case, the Master’s approved plan itself contemplates a disposition of the property – it allocated shares to two estates, implicitly for the benefit of the beneficiaries of those estates. There is nothing in the law that says those beneficiaries (or their executors) must first transfer the property into their personal names and then only sell. They are at liberty to agree on a sale at any time, or as here, to seek a court order for sale if they cannot agree.

It is important to distinguish legal (registered) title from beneficial ownership. In Zimbabwe, as in other jurisdictions influenced by Roman-Dutch and English law, when a person dies, legal title to their immovable property remains vested in the estate under the executor’s administration until transfer. However, the heirs or beneficiaries have what is often called a beneficial interest or vested right to the property, especially once an estate account allocating that property to them has been confirmed. This split between legal and beneficial title is recognized in our law. The Deeds Registry will reflect the deceased’s name (or the executor’s name) as the legal owner until transfer, but in equity and law the beneficiaries are the true owners-in-waiting. They can enforce their rights through the courts even prior to transfer. For instance, if a third party unlawfully occupies or interferes with estate property, the executor or beneficiaries can take action to protect it; they need not wait for winding-up. Likewise, one beneficiary’s right to realize their share can be enforced even while formal title is pending. Courts will give effect to the real rights of parties notwithstanding formal registration not yet having been completed.

In the context of co-owned estate property, what typically happens is that the co-beneficiaries or executors on their behalf either agree to sell the property and split the proceeds, or one buys out the other’s share, or they transfer the property into both their names as tenants in common. The first respondent’s stance has prevented any of these consensual outcomes. That does not mean the applicant is powerless. The actio communi dividundo exists precisely to resolve such stalemates. Our case law and that of South Africa (which shares the actio communi dividundo in its Roman-Dutch heritage) confirm that a co-owner may compel partition by sale even if the co-owner’s title is unregistered, so long as the co-owner’s interest is lawfully established. In Robson v Theron (supra), the court allowed partition of a farm owned jointly by parties, one of whom had obtained his share via inheritance. The inherited share was not initially registered in his name, but the court treated him as a co-owner by virtue of his vested interest. Similarly, in Estate Rother v Estate Sandig (supra), one estate succeeded in compelling the sale of jointly owned property against the wishes of the other estate, notwithstanding that transfer into the estates’ names had not yet occurred at the Deeds Office. The guiding principle is substance over form: once it is clear who holds the beneficial interests in a property, the court will not allow formalities of title to frustrate a legitimate partition. Instead, the court’s order will typically direct the executor(s) to effect transfer or sale, thereby regularizing title through the process of implementing the order.

Put plainly, the unregistered nature of the applicant’s half-share is no bar to relief. The first respondent’s own rights will be safeguarded by the order as well – the sale will produce money, which will be divided such that her late brother’s estate gets its due half. The transfer of title will occur as part of the sale (either the purchaser will get a deed, or if one co-owner buys out the other, then transfer of the appropriate share will be made). All this can and will be supervised to ensure compliance with the law (including obtaining the Master’s consent to transfer, if required under the estates law). What matters now is the principle: co-ownership has become intolerable to one party and ultimately both beneficiaries will benefit from a clear resolution. The property, being an indivisible residential stand, cannot be physically split; a sale is the fairest way out.

The respondent’s insistence that the estate must be wound up first is circular and counter-productive. Winding up an estate entails distributing its assets to the rightful parties. Here, distribution cannot be finalized without resolving the fate of the jointly held property, which is exactly what this application addresses. The fastest way to “wind up” both estates vis-à-vis this asset is to terminate the co-ownership and convert the property into cash for distribution. Indeed, prolonging co-ownership only delays closure for both estates. The law does not countenance such delay when a ready avenue for resolution exists. As the applicant rightly argues, her duty as executor is to realize the assets and settle the estate; she cannot do so while stuck in an unwilling co-ownership. The actio communi dividundo gives her recourse to fulfil that duty.

Conclusion and Disposition

Having found that the interim distribution plan is valid and binding in establishing the parties’ co-ownership, and that none of the respondent’s defences bar the relief sought, the court is satisfied that the applicant is entitled to an order terminating the joint ownership of Stand 287 Unit G, Seke, Chitungwiza. The requirements for the actio communi dividundo are met: the parties are co-owners of property which is not reasonably capable of physical division, and they have failed to agree on its division. In line with common law principles and the court’s wide equitable discretion, a just and practical solution is to order a sale of the property and a division of the net proceeds. This will free each estate to make use of its share independently, thus doing real justice to both sides.

In the exercise of its discretion, the Court will grant an order for sale by private treaty (to allow the parties an opportunity to jointly secure a purchaser at the best price), failing which the Sheriff of Zimbabwe will conduct a public auction. Either way, the proceeds will be divided equally between the two estates (after settling any sale expenses and capital gains tax or related costs). The respondent and those claiming occupation through the estates will be given a reasonable period to vacate upon sale, to facilitate transfer to the buyer. The specifics are set out in the operative order below.

The general rule in actio communi dividundo matters is that costs follow the result, unless special circumstances dictate otherwise. The respondent’s opposition has been based on untenable legal positions, and her obstruction necessitated these proceedings. There is no reason to depart from the normal rule. Costs will therefore be awarded against the first respondent, in her representative capacity, on the ordinary scale. These costs can be paid out of the Estate Stephen Musiyiwa if appropriate, subject to the Master’s directions, since the litigation was pursued for that estate’s purported interest.

IT IS ORDERED THAT:

The joint ownership of Stand 287 Unit G, Seke, Chitungwiza, held in equal shares by the Estate Late Ambrose Jeremiah Musiyiwa and the Estate Late Stephen Musiyiwa, be and is hereby terminated.

The property shall be sold so as to effect division. The co-owners, through their executors may, by agreement within 30 days of this order, appoint an estate agent and sell the property by private treaty at a price not less than a registered valuer’s valuation. Failing an agreed private sale within that period, the property shall be sold by the Sheriff of Zimbabwe by public auction to the highest bidder, without reserve, subject to the Sheriff’s usual conditions of sale.

The net proceeds of the sale, after deduction of the costs of sale, taxes, and any liabilities necessary to discharge to pass transfer shall be divided equally between the Estate Late Ambrose J. Musiyiwa and the Estate Late Stephen Musiyiwa, or their nominee beneficiaries, in accordance with their 50% shares. Each estate’s share of the net proceeds shall thereafter be dealt with by the respective executor in terms of the law for distribution to the beneficiaries of that estate.

The Sheriff of Zimbabwe or his Deputy is authorized to sign all necessary documents to give effect to the transfer of the property to the purchaser, should either co-owner’s executor fail or refuse to do so. The Registrar of Deeds is authorized to register transfer of the property to the purchaser upon compliance with the usual requirements.

Any persons occupying the property by virtue of or through the parties shall vacate the property upon transfer to the purchaser, and in any event no later than 30 days after the Sheriff demands vacant possession for purposes of transfer. Should there be failure to vacate, the Sheriff is empowered to eject any such persons on 48 hours’ notice.

The first respondent shall bear the costs of this application, on a party-to-party scale, such costs to be paid by the Estate Late Stephen Musiyiwa unless the Master directs otherwise.

Mambara J: ………………………………………………………….

Muvhami Attorneys, applicant’s legal practitioners

Thoughts Deme Attorneys at Law, 1st respondent’s legal practitioners