Thabiso Daka and Winifilda Daniel v Oliver Masomera N.O and Margaret Gwatidzo and Master of the High Court and Master of the High Court N.O

### Preamble
1
HH 517-25
HCHF 754/25
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THABISO DAKA

and

WINIFILDA DANIEL

versus

OLIVER MASOMERA N.O

and

MARGARET GWATIDZO

and

MASTER OF THE HIGH COURT

and

MASTER OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE, 5 June 9 September 2025

Opposed Matter-Reopening Of Estate

T Mazikana, for the applicants

F Siyawareva, for the 2nd respondent

No appearance for the 1st, 3rd, 4th respondents

MAXWELL J:  Applicants approached the court seeking the following order.

“1. The application to reopen the estate of the late Madison Daniel under DR 10/95 is hereby granted.

2. The First and Final Distribution Account in the Estate Late Madison Daniel under DR 10/95 be and is hereby set aside.

3. The Estate of Madison Daniel, deceased, under DR 10/95 shall be re-opened for administration by an independent executor to be appointed by the fourth respondent in accordance with the law.

4. The appointment of the Late Winnie Dhaka as Executrix Dative in the Estate Late Madison Daniel be and is hereby set aside.

5. The fourth respondent is hereby ordered to appoint an independent executor to administer the above estate in terms of the law.

6. The transfer or cession or rights in the immovable property namely House Number 966 Nyanga Street, St Marys, Chitungwiza, that may have been occasioned by the late Winnie Dhaka into her name is hereby set aside and the property shall revert to being in the name of the late Madison Daniel till the process of administration is completed.

7. Each part shall bear their own costs of suit.”

The Founding Affidavit was deposed to by the first applicant.  She stated that the late Madison Daniel (Madison) and the Late Winnie Dhaka (Winnie) were brother and sister.  The late Madison died intestate at Harare on 20 December 1993.  He left behind a house in Chitungwiza being house number 966 Nyanga Street, St Marys, Chitungwiza.  The late Madison was survived by the applicants.  He predeceased his father the late Daniel Dhaka who died in 1999.  There were also four siblings, three of whom are now deceased.  First applicant stated that their late father had accommodated the late Winnie and many other relatives in the property in question.  His estate was not registered by any of his children.  Unbeknown to the applicants, Winnie registered the estate of the late Madison on the fourth of January 1995.  She was appointed the executrix dative of the estate late Madison on 9 January 1996.

On 3 March 2022 the first applicant approached the Master of the High Court seeking to register the estate of the Late Madison.  It was registered under Number DRCZ 8/22 and first applicant was appointed Executrix Dative.  First applicant later learnt that the property in question had been awarded to the late Winnie following the winding up of the estate late Madison.

First applicant submitted that the award of the property to the late Winnie Dhaka was based on false information submitted by the late Winnie to the fourth respondent that the late Madison had predeceased his father, had no children and that she was the only surviving sibling.  First applicant stated that upon Winnie’s demise, first respondent was appointed executor of her estate and that she has been collecting rentals from the property.  Further that none of the rentals were remitted to the applicants.  Applicants seek rectification of the mispresentation and fraudulent conduct of the late Winnie.  Second applicant deposed to a Supporting Affidavit and associated herself with the averments in first applicant’s affidavit.

The applicants filed a report by the Master in which the history of the matter was stated.  It is concluded by the following.

“SUBMISSIONS

Our office does not have much to say on the Estate Late Daniel Madison as we are not at privy of the information that is being alleged by the applicants.  However, an application for the re-opening of an estate can only succeed if there are special circumstances justifying such re-opening.  The existence of acts of fraud or misrepresentation being examples of such special circumstances.  See, Ncube and Anor v Ncube and 7 others HB 19-16.  Material non-disclosure in turn is a form of misrepresentation, Muzunga and Others v Muzunga and Others HH 172-15.  If the application for re-opening is premised on fraud or misrepresentation, it is incumbent upon the applicant to allege and prove specific acts of fraud, See Stanbic Zimbabwe Ltd v Duran HH 54-2007.

Should this Honourable Court find that the late Winnie Dhaka falsely misrepresented herself as the sole beneficiary of the estate late Madison Daniel our office has no objection to the relief sought by the applicants however, we will stand guided by the decision of this Honourable Court.”

The application was opposed by the second respondent.  She stated in limine that the matter has prescribed as the Estates sought to be re-opened were wound up more than thirty years ago.  She also stated that the present application is lis pendens as the applicant filed an action between the same parties on the same cause of action under case number HCH 1807/22.

On the merits, second respondent submitted that there are no special circumstances justifying the reopening of the estate.  Further that the relief sought is incompetent as it is not supported by the facts or the law and amounts to seeking an order for review outside the permissible time frame.  First respondent also stated that the late Madison resided in Glen View during his lifetime until his demise and that the late Winnie Dhaka accommodated her relatives from the time of her return from her first marriage in the 1980s until her death.  First respondent disputed that the estate of the late Madison was registered discreetly and submitted what there is no legal requirement to notify the applicants under the law.  She disputed any misrepresentation and stated that applicants ought to have been aware of the estate registration and subsequent change of name as they regularly attended family gatherings at the property in question.  She submitted that she is entitled to collect the estate assets in accordance with the Law and there is no obligation to remit rental payments to the applicants, as they are neither beneficiaries of the late Winnie Dhaka’s estate.  She prayed for the dismissal of the application with costs on a Legal Practitioner and Client scale.

In answer to the Opposing Affidavit first applicant insisted that the facts surrounding this matter warrant that the court reopens the Estate.  She disputed that there is a pending matter between the parties on the same issue.  She insisted that there was fraudulent misrepresentation that took place in the winding up of the Late Madison Daniel estate.  First applicant stated that they are seeking a complete reversal of all acts carried out by the Late Winnie Dhaka so that the process of winding up the late Madison Daniel’s estate begins anew.  She further stated that at the time of registration of their late father’s property, they were still minors.

At the hearing of the matter, the preliminary point relating to lis pendens was abandoned.  Whether the matter prescribed

Counsel for the second respondent submitted that the claim prescribed for two reasons.  The first is that applicants allege that they were minors when their father died and when their father’s estate was registered and subsequently wound up.  He pointed out that in terms of s 17 of the Prescription Act [Chapter 8:11] the applicants are given a year after attainment of the legal age of majority and since they are both above 30 years, they ought to have filed this application around 2013.  Furthermore, the applicants’ father’s estate was wound up as far back as 1996.  The three year period has since lapsed and therefore the matter has prescribed.  He argued in the alternative that applicants have been aware of the fact that their father’s estate was registered as far back as 29 November 2021 as shown in the minutes of the edict meeting in the Estate of the Late Winnie Dhaka.

In response counsel for the applicants submitted that the Founding Affidavit is clear that applicants became aware of the facts surrounding the cause of action in March 2022 in proceedings in HCH 1476/22.  She pointed out that this was not disputed in the opposing affidavit.  She also submitted that the applicants did not raise the issue of being minors as an impediment to challenging the registration of their father’s estate.

Section 16 of the Prescription Act [Chapter 8:11] states.

“1. Subject to subsections (2) and (3) prescription shall commence to run as soon as debt is due.

2.…

A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.

Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

The document on p 38 of the record which counsel for the second respondent relied upon as proof that applicants became aware of the registration of their father’s estate on 29 November 2021 does not support that conclusion.  Yes, indeed there was an edict meeting on 29 November 2021 for the estate of the Late Winnie Dhaka and the applicants were in attendance.  However, the following resolution in the record on p 38 is pertinent.

“Resolution

As it stand (sic) claimants have no locus standi to represent the estate of the late Daniel Daka.  Clients advised to register the estate and facilitate appointment of an executor.”

This resolution would not have been made if the applicants were aware that their father’s estate had been registered.  Since the date they said they became aware was not challenged, the defence of prescription does not succeed.

On the merits, it is stated in Ncube and Another v Ncube and Others HB 19/16 that”

“This court must adopt the stance that an estate that has been wound up may not be unwound and re-registered randomly.  There must exist special circumstances for the unwinding of an estate.  Such special circumstances will include acts of fraud or misrepresentation.”

From the Founding Affidavit, the late Winnie registered the estate of the late Madison on 4 January 1995 outside the knowledge of the applicants.  She wound up the estate and awarded the property to herself.  Applicants stated that the award of the property to the late Winnie Dhaka was fraudulent in that it was based on false information to the effect that the late Madison had predeceased his father, had no children at the time of death and that Winnie Dhaka was the only surviving sibling of the deceased.  The misrepresentation is confirmed in the Death Notice filed as Annexure B.  Applicants submitted that at the time the Death Notice was submitted, the late Madison’s father was still alive, his daughters who are the applicants herein were existent and known to the late Winnie Dhaka and the late Madison had 3 sisters and a brother who were alive at the time of his demise.  Paragraph 13 of the Founding Affidavit is couched as follows:

“13. At the time of his death, the late Madison also left behind his father, Daniel Dhaka who then died in 1999 and other siblings, 3 sisters and a brother listed below:

Everesy Chinsande born on 9 December 1930 who is still alive.

Mary Maggie Dhaka who died on 17 May 1997.

Henry Daka who died in 1998.

Annastencia Mazenda who died on 15 July 2021.”

The response to para 13 of the Founding Affidavit was an admission.  In the Opposing Affidavit, second respondent wrote.

“Ad Para 13

13. This admitted.”

That response confirms the averments by the applicants and the misrepresentation by the late Winnie Dhaka.  I am satisfied that a case has been made for the reopening of the estate late Madison Daniel under DR10/95.  The following order is therefore appropriate.

Order

“1. The application to reopen the estate of the late Madison Daniel under DR 10/95 is hereby granted.

2. The First and Final Distribution Account in the Estate Late Madison Daniel under DR 10/95 be and is hereby set aside.

3. The Estate of Madison Daniel, deceased, under DR 10/95 shall be re-opened for administration by an independent executor to be appointed by the fourth respondent in accordance with the law.

4. The appointment of the Late Winnie Dhaka as Executrix Dative in the Estate Late Madison Daniel be and is hereby set aside.

5. The fourth respondent is hereby ordered to appoint an independent executor to administer the above estate in terms of the law.

6. The transfer of cession of rights in the immovable property namely House Number 966 Nyanga Street, St Marys, Chitungwiza, that may have been occasioned by the late Winnie Dhaka into her name is hereby set aside and the property shall revert to being in the name of the late Madison Daniel till the process of administration is completed.

7. Each part shall bear their own costs of suit.”

Maxwell J:………………………………

Lunga Mazikana Attorneys, applicants’ legal practitioners

James Majatame Attorneys at Law, second respondent’s legal practitioners