Tawanda Katsande v Augustine Katsande (In his capacity as executor dative for estate late Edwell Benny Katsande) & 6 Ors

### Preamble
1
HH 590-25
HCH 2232/21
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TAWANDA KATSANDE

versus

AUGUSTINE KATSANDE (In his capacity as executor dative for estate late Edwell Benny Katsande)

and

Estate Late SHINGIRAI KATSANDE DR 3097

and

EVELYN KATSANDE (In her capacity as executrix dative for estate late Shingirai Katsande
DR90/17)

and

AMBROSE NAVHAYA

and

MASTER OF THE HIGH COURT

and

THE REGISTRAR OF DEEDS

and

CITY OF HARARE

HIGH COURT OF ZIMBABWE
TSANGA J
1 October, 2025

Court Application

M Magaya & V T Mugiya for Applicant
L Zinyengere for the fourth Respondent
No appearance first, second & third respondents.
5th to 7th respondents cited in their official capacity

TSANGA J:  The applicant Tawanda Katsande brought an application for a declaratur as the alleged only surviving child and daughter of the late Edwell Benny Katsande who died on 18 August 2006. She was born in 1982. It was not in dispute that she was a child born out of wedlock. At the time of her alleged father’s death, she had now been living with him for a few years. She was 24 at the time.

She sought a reversal of the winding up of her father’s estate under DR 1696/2006 on the basis that the first respondent, Augustine Katsande, her late father’s biological brother, had misrepresented to the Master that her father had died without children when she was in fact his sole surviving child. She wanted the estate reopened for proper administration. She further sought that the fourth respondent, Ambrose Navhaya, having bought the property through Augustine Katsande, the Deed of Transfer in his name be cancelled and the property returned into her late father’s name.

Her version of events leading to this late quest on her part given that her father died in 2006, was that at the time that he died, she did not have sufficient funds to look after the estate or to wind it up to its logical conclusion. Augustine Katsande had been appointed executor. She had moved to South Africa in 2006 to try and raise funds for looking after the property as well as estate expenses. She averred that she had always kept in touch with her uncle Augustine and at all times was assured that the property was being looked after. In 2017, she had then visited Zimbabwe from South Africa and found tenants there. Sometime thereafter, she had received intelligence that the property had been sold and when she confirmed this in 2021 she had lodged this application some time in 2022. Augustine Katsande had indeed sold the house to Ambrose Navhaya. The beneficiaries of the proceeds of the sale had been himself and his younger and now late biological brother, Shingirayi Katsande.

At the initial hearing of the matter on 21 March 2024, Mr Zinyengere raised preliminary points on behalf of his client, Ambrose Navhaya as the fourth respondent. He submitted that though the application was before the court as a declaratur, it was in fact a disguised application for review of the Master’s actions. Any challenges of the Master’s actions, he argued, should be by way of a review and adhere to stipulated time frames. He relied on Mamutse v Tichareva & Ors HH 258/18 for this point. He also pointed out that the applicant had indeed previously filed an application for review which was challenged and she had conceded and withdrawn that matter. She was therefore said to have only filed this application as a declaratur to circumvent the time frame. This application was said to be improperly before the court and he submitted that it ought to be struck off.

Prescription was also raised as another preliminary point since the sale and registration had been concluded in 2017. His argument was that in terms of s 15 of the Prescription Act [Chapter 8:11] the claim ought to have been raised within three years. Again, he argued that the matter ought to fail.

A critical preliminary point also had to do with her birth certificate which now bore her father’s name and which was only issued on 4 September 2017, some eleven years after his death. Applicant would have been 35 years old at the time. Mr Zinyengerer’s point of emphasis was that in terms of s 12 of the Birth and Registration Act [Chapter: 5:02], where one is born out of wedlock, one cannot include a person as a father without paternal relatives being available. The new birth certificate in this instance was obtained by the applicant’s mother‘s relative as the informant. He also pointed out that at the time the estate was wound up she did not have a birth certificate in her father’s name. He put forward that the birth certificate was therefore taken at that point merely for purposes of grounding this matter. Again, he argued that the application ought to fail on this point.

Mr Magaya who appeared for the applicant on that day, argued that what they were challenging was not the process of the Master but the misrepresentation that had taken place. He also argued that prescription does not apply to a declarator and relied on NSSA v City of Mutare HH 358/18 for this assertion. As for the birth certificate he maintained that it was authentic nonetheless regardless of having been obtained by applicant’s mother’s relative instead of the alleged father’s relatives.

In my view the issue of the nature of the application concentrated more on form as opposed to the critical substance of the application which was whether the applicant was wrongfully cheated of her inheritance as the purported only surviving child of the deceased.

Whilst prescription goes to the root of a matter, it is also trite that an heir cannot be unlawfully cheated of their inheritance and therefore if the applicant was the only lawful heir at any given time her claim could not be changed by prescription as the sale of the house would have been improper.

On the declarator suffice it to say that a declarator does have a life span depending of course on whether the action giving rise to it is itself is subject to a life span.

As stated in Dhliwayo & Ors v Tonoziva Bere N.O & Ors HH 164/24

“…the substance of the claim that gives rise to the quest for a declaratur is a necessary starting point in determining whether the quest for a declaratur has also prescribed. If upon examining the nature of the claim, it emerges from its holistic substance that it is one which ought to have been and could have resolved through prescribed channels, then if the time limit for pursuing the matter through those channels has prescribed so would the quest for a declaratur. The quest for a declaratur cannot, simply put, be divorced from the causa as to do so would indeed create a situation where those who have done nothing about their claim resort to using the declaratur as a back door to seeking coercive relief which they could have sought within the prescribed time limits. Different factual aspects of the case may have prescribed at different times.”

However, the important point in this instance was about an alleged heir asserting rights to her father’s estate at any time and not being defrauded by others. As for the birth certificate, the applicant at all times had used her mother’s surname “Muchenje” and had indeed only taken out a birth certificate long after her father’s demise aided by one of her mother’s relatives. All this made the central issue and starting point whether she was in fact a child of the deceased Edwell Benny Katsande. In the final analysis I was of the view that these preliminary points were not dispositive of the dispute as the court needed to be certain if at all applicant was biologically the child of the deceased. It was therefore critical to have the applicant undergo a DNA test to establish this. The two parties were agreed that such results would indeed be dispositive of the matter either way especially as it appeared from the record that Augustine’s actions were motivated by the belief within his family circle that the late Edwell could not bear children.

An initial DNA test was purportedly done between applicant and an alleged paternal aunt named Eustina Katsande. Those results showed that the applicant and the alleged aunt were 99.9% related. However, the doctor who carried out the tests had clearly endorsed directly on the results sheet that the results were based “on samples received of which the identity of the parties could not be independently verified”. The underlying point was that they had relied on samples received from applicant for testing. From those samples provided by applicant to the laboratory, which could have been from any of her relatives, the tests showed that the alleged relative was a relative of applicant. Little wonder the other side deemed them unacceptable.

The first respondent had not been part of the tests. When the lawyers from both sides convened in chambers to map the way forward with the initial DNA results at hand, Augustine Katsande was now also present in chambers. He maintained he had not been served with the initial application hence his absence when the matter was initially heard and DNA tests ordered. Since it was common cause that applicant’s quest was founded on her assertion that the first respondent, Augustine Katsande, was indeed a biological brother to her late father, the parties again agreed that a second DNA test be done. This time the tests would be between the applicant and Augustine Katsande as her late father’s sole surviving blood brother. Both applicant and Augustine would be present in person. The other brother cited herein under Estate Shingirayi Katsande since passed away. It was further agreed that this second DNA test where both would be physically present, would be carried out at an independent government laboratory. It was against his backdrop that the DNA tests were then conducted between the applicant and Augustine Katsande in person by the University of Science and Technology, (Applied Genetic Testing Centre).

The report shows that the DNA was extracted from each individual. The DNA results show that there is no relation between the applicant and the first respondent. In other words, she is not his niece. Whilst the results may, with deductive reasoning, also suggest that her late father and Augustine were in fact not brothers, it is important to note that Augustine Katsande was put forward as a legitimate blood sibling of the deceased. It is not for the court to now comb the clan for relatives for other DNA tests to fit the narrative she has lived with. Applicant’s own mother would of course have been best placed to shed light on who her father may possibly be, but she is said to have died in 2008. Given the results, it is perhaps not just a coincidence that doubts lingered in the family circle about applicant’s paternity. Also, in light of the anomalous way in which the applicant’s mother’s relative played a crucial role in obtaining her birth certificate with her deceased father’s name on it, one cannot rule out that the DNA samples provided or submitted to the first laboratory in the initial test, could have come from this same mother’s relative. Against the backdrop where the DNA test show no relationship with the blood brother of the deceased, it is the court’s view that the application by the applicant for a declarator can simply not stand.

It is for the above reasons that the application is dismissed with costs.

TSANGA J………………………………………

Maseko Law Chambers, Applicants Legal Practitioners
Zinyengere Rupapa Legal Practitioners, Fourth Respondent’s Legal Practitioners