Total Zimbabwe (Private) Limited V Gijima N.O.

### Preamble
HH 67-2005
HC 11467/04
TOTAL ZIMBABWE (PRIVATE) LIMITED
versus
GIJIMA N.O.
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TOTAL ZIMBABWE (PRIVATE) LIMITED
versus
GIJIMA N.O.
and
THE MASTER OF THE HIGH COURT N.O.

HIGH COURT OF ZIMBABWE
PATEL J
HARARE, 1 April, 19 May and 3 August 2005

OPPOSED APPLICATION

Adv. Zhou, for the applicant
Mr. Gijima, for the respondent

The Facts

The applicant is a body corporate operating in Zimbabwe. The 1st respondent is the executor of the estate of Jeoffry Sakala, who died on the 12th of January 2004. The 1st respondent is legally representing himself in the present proceedings. The 2nd respondent is the Master of the High Court and is cited in his official capacity.

On the 5th of November 2003, the applicant entered into an agreement of sale with the deceased Sakala for the purchase of Stand 6103, Kadoma Township. In terms of this agreement, the purchase price was fixed at $500 million. Of this total amount, the sum of $400 million was to be paid on signature of the agreement, while a figure of $100 million was to be retained and utilised by the applicant to settle the capital gains tax owing to the fiscus. The applicant was to take occupation of the property upon payment of $400 million.

On the 5th of November 2003, the applicant duly paid $400 million to the deceased. However, as at the date of Sakala’s death, the property had not as yet been transferred into the applicant’s name. The applicant subsequently demanded possession by letters written in June and September 2004. The 1st respondent, qua executor of the deceased’s estate, declined to give vacant possession to the applicant.

The applicant now seeks transfer of title and vacant possession of Stand 6103, Kadoma Township. It also seeks costs on a higher scale to be paid *de bonis propriis* by Mr. Gijima, in his capacity as 1st respondent’s legal practitioner.

**The Issues**

Counsel for the applicant submits that the founding papers clearly affirm the legality of the sale agreement *in casu* and that this is not disputed in the opposing papers. Furthermore, two letters written by the 1st respondent himself on the 12th of December 2003 and the 9th of September 2004 openly acknowledge the terms of the agreement as regards the purchase price of $400 million and the retention of $100 million by the applicant for the payment of capital gains tax. The 1st respondent, as clearly appears from the papers on record, only began to dispute the legality of the sale after the death of the seller Sakala.

It is also submitted for the applicant that there is nothing in law to prevent the transfer of property sold by the deceased or by the deceased estate before the estate is wound up.

In rebuttal, the 1st respondent avers that the present application is premature. The property in dispute is still part of the deceased estate and, as such, it must form part of the distribution account. The 1st respondent further submits that the applicant must first lodge a formal claim with the 1st respondent, *qua* executor of the deceased estate. The initial claim made by the applicant, so it is argued, was lodged with the 1st respondent in his capacity as the deceased’s legal practitioner and not in his capacity as the executor of the deceased’s estate. In support of this argument, the 1st respondent invokes the Master’s report which confirms that the applicant should file its claim with the 1st respondent.


In addition to the above-stated position, the 1st respondent also questions the validity of the sale *in casu*. He avers that the sale was to be effected at a higher price of $750 million and that the written agreement reflected a purchase price of only $500 million so as to evade a higher rate of capital gains tax. Even more perniciously, so avers the 1st respondent, the deceased’s signatures on the sale agreement, the power of attorney to pass transfer and the seller’s declaration are not authentic and have been forged in order to conclude the sale transaction. In support of this assertion, the 1st respondent sought to compare the signatures of the deceased on various documents presented to the Court.

In response, Counsel for the applicant avers that the question of the additional $250 million was only raised by the 1st respondent at a later stage. The relevant correspondence concerning the sum of $250 million and other amounts relates to certain equipment purchased by the applicant from the deceased and various debts due from the latter to the applicant. These transactions are all captured in the ancillary agreements filed with the notice of opposition.

As regards the alleged forgeries of the deceased’s signature, Counsel for the applicant correctly points out that no evidence has been adduced to substantiate the 1st respondent’s allegations. Moreover, the signatures of the deceased on the documents presented to the Court are all fairly similar.

On the question of costs, Counsel for the applicant submits that the 1st respondent should be ordered to pay costs on a higher scale *de bonis propriis*. The reasons for this claim are twofold: firstly, that the 1st respondent has no basis whatsoever for resisting the applicant’s claim and his conduct in this connection is nothing less than vexatious; secondly, that the 1st respondent has cast false aspersions against the applicant and its legal practitioners pertaining to the deceased’s signatures on material documents.


Having regard to the aforegoing, I perceive the material issues for determination in this case to be as follows:-

1. Is the agreement for the sale of the property *in casu* made between the applicant and the deceased Sakala valid and binding?

2. Is it necessary for the applicant to lodge a further claim with the 1st respondent for the transfer of the property?

3. Is it legally permissible for the 1st respondent, *qua* executor, to transfer the property sold to the applicant before the deceased estate is wound up?

4. If so, how are the property and the money paid therefor to be reflected in the estate’s accounts?

**Validity of Sale Agreement**

As is evident from the papers and submissions before the Court, the contents of the written sale agreement between the applicant and the deceased are not contested *in se*. Moreover, the letters written by the 1st respondent before Sakala’s death actually confirm the purchase price of $500 million, including the sum of $100 million to be retained by the applicant for the payment of tax. It is also apparent that the subsequent correspondence and documents dealing with additional sums of money relate to other ancillary transactions between the applicant and the deceased. I therefore find that the written sale agreement *in casu* correctly reflects the intention of the signatories thereto and that its contents as to the purchase price and other material features cannot be disputed.

Be that as it may, the 1st respondent alleges that the deceased’s signatures on the sale agreement and other material documents have been forged and that the legality of the agreement is therefore highly questionable. Having regard to all the salient circumstances, I find it extremely difficult to comprehend the basis of these very serious allegations. Even with the greatest latitude that I might be persuaded to allow, I can find no merit whatsoever in the 1st respondent’s allegations. They are, to put it succinctly, wholly unsubstantiated and clearly untenable. Despite the availability of ample time and opportunity to do so, no expert evidence has been adduced to analyse or challenge the deceased’s signatures on the critical documents in this case. From my own perspective, albeit an inexpert one, I am quite unable to discern any material difference in the signatures presented before the Court. It follows that the 1st respondent’s contentions in this regard must be rejected *in toto*.

It is trite that contracts concluded by a deceased individual (except those of a purely personal nature) are binding on his or her executor. (See Meyerowitz: *Law and Practice of Administration of Estates*, 5th ed., at p. 136). Accordingly, I hold that the agreement for the sale of the property *in casu* is valid and binding on the 1st respondent.

**Formal Claim for Transfer**

The 1st respondent avers that the applicant’s claim for transfer of the immovable property was made to him in his capacity as the deceased’s legal practitioner and not *qua* executor of the deceased’s estate. Therefore, so it is argued, the applicant is obliged to lodge a fresh claim with the 1st respondent wearing his executor’s hat. As I see it, this contention is patently specious and unacceptable. Apart from its being devious, it does not accord with an executor’s duties in terms of section 45(1) of the Administration of Estates Act [*Chapter 6:01*]. In terms of that section, an executor must recognise and satisfy the claims of all creditors. Such claims must encompass not only those that have been formally lodged with him but also those of which he has knowledge.

In the present case, the 1st respondent was fully aware of the applicant’s claim at all material times. That being so, he cannot now purport to evade that claim and demand another formal claim for transfer. He is under a clear legal obligation to recognise and process the applicant’s claim from the deceased estate.

**Transfer before Estate is Wound up**

Where a deceased person has concluded a binding contract for the sale of immovable property, his or her executor must effect transfer to the purchaser in terms of that contract. Such transfer must be duly reflected in the executor’s distribution account. (See section 52 of Chapter 6:01). However, the actual transfer itself does not need to await the completion of the final liquidation account. (See Meyerowitz, *supra*, at p. 149). Moreover, the Master’s requirements as to sales by an executor do not apply to sales effected by the deceased himself (*ibid.*, at p. 149).

In view of my earlier finding that the sale *in casu* is valid and binding, it follows that it is legally permissible for the 1st respondent to transfer the property in question to the applicant before the deceased’s estate is wound up.

**Estate’s Accounts**

It is undisputed that the property claimed by the applicant must be properly accounted for in the deceased estate’s accounts. The latter must reflect that the property was sold by the deceased prior to his death and must show the full amount paid for it.

In accounting terms, the property that is to be transferred from the deceased estate must be listed as an asset, valued at the sale price. Correspondingly, the applicant’s claim for transfer must be shown as a liability at the amount of the purchase price – less such sum, if any, that is still due to be paid by the applicant. (See Meyerowitz, *supra*, at p. 182).

The rationale for balancing the estate’s accounts in this way is that the deceased has already received value for the property sold. If the property is only listed as the deceased’s asset, without reflecting the countervailing liability to the applicant, *qua* purchaser, the estate would incur and be subjected to the payment of additional and unwarranted estate duty.

**Costs**

The papers before the Court clearly show that the 1st respondent was fully aware of the applicant’s claim for transfer well before Sakala’s death. Even after Sakala’s death, but before being appointed executor, the 1st respondent acknowledged the applicant’s claim by letter dated the 14th of June 2004.

In these circumstances, the 1st respondent’s assertion that the applicant’s claim is not properly before him *qua* executor is manifestly disingenuous. It is also highly unprofessional and vexatious and evidently designed merely to delay and frustrate finalisation of the applicant’s claim. It constitutes, in my view, an unacceptable abuse of the court process. As such, it affords a clear basis for awarding costs *de bonis propriis* against the 1st respondent. (See *Doelcam (Pvt) Ltd v Pichanik & Others* 1999 (1) ZLR 39; *Ndlovu v Murandu* 1999 (2) ZLR 341).

Additionally, the 1st respondent has also alleged irregular, dishonest and fraudulent conduct on the part of the applicant and its legal practitioners by claiming that the deceased’s signatures have been forged on material documents. As I have already stated, these assertions were not supported by any shred of evidence and are wholly unjustified. Despite this, the 1st respondent has doggedly persisted in his defamatory allegations. Such scurrilous conduct on his part provides a further basis for awarding costs *de bonis propriis* against him. (See *Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Another* HH 96-90; *Holdengarde v Dorn* HB 74-94; *Nyandoro v Sithole & Others* 1999 (2) ZLR 353).

In the present case, I can find no justification at all for burdening the deceased estate with the costs of the present application. The 1st respondent, *qua* executor and legal practitioner representing the deceased estate, is personally responsible for his totally unwarranted opposition to the applicant’s claim. Accordingly, for the reasons already cited, I am fully persuaded that the costs of this application must be borne by him *de bonis propriis* on the higher scale of costs.

**Order**

Counsel for the applicant has conceded that the relief sought in paragraphs 1 and 3 of the draft Order is inappropriate as the applicant is not aware of the identity and legal tenure of the current occupiers, if any, of the property *in casu*. Accordingly, those paragraphs are to be omitted from the final Order.

In the result, it is ordered that:-

(a) The 1st respondent shall, within 7 days of the date of this Order, sign all documents as are necessary to effect transfer of Stand 6103, Kadoma Township of Stand 201 Gatooma, held under Deed of Transfer 7057/2001, into the applicant’s name, failing which the Deputy Sheriff Harare shall be and is hereby authorised to sign the necessary papers for that purpose.

(b) The 1st respondent shall pay the costs of this application on a legal practitioner and client scale in his personal capacity *de bonis propriis*.

*Gill, Godlonton & Gerrans*, legal practitioners for the applicant.  
*F.G. Gijima & Associates*, legal practitioners for the 1st respondent.
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