A NASTY and protracted estate wrangle involving a family from Luveve suburb has sucked in Master of the High Court in Bulawayo who is accused of having acted in an “irregular manner” by giving authority of the sale of a house allegedly knowing very well that the beneficiaries were not in agreement with the proposed sale.
This emerged from court papers filed by Emma Sibanda at the Bulawayo High Court under case number HC2372/19 in which she was seeking an order that the sale of her late husband Samuel Dube’s property be set aside and the account be redistributed.
In her suit Sibanda cited Wilfred Mafuka as the first respondent, Noel Dube, her late husband’s brother as second respondent, Abigirl Ndlovu who bought the house as the third respondent and Master of the High Court as the fourth respondent.
The first and second respondents were cited by virtue of them being the executors of the estate, with Mafuka having been appointed by virtue of a special power of attorney.
Sibanda stated that on 15 July 2018, a letter was written to the family by Mafuka advising them that the estate did not have sufficient funds to cushion estate liabilities, while suggesting that their house number 5959 in Luveve suburb be sold.
She said none of the beneficiaries, were in agreement with this except for the first wife Simomo Dube who consented through an affidavit.
“On the 18th of July 2018, the first respondent wrote to the Master of the High Court, claiming that the applicant was the only one benefiting from the property and that since the first wife was in agreement with the sale, that the Master of the High Court was to give them the green light by issuing approval in terms of section 120 of the Administration of Deceased Estate Act.
“On the 25th September 2018, the fourth respondent’s office, issued authorisation for the first respondent to sell the house in question in terms of Section 120 of the Administration of Deceased Estate Act.
“On the 2nd of October 2018, the first respondent applied for a valuation survey report so as to sell the property at market value. The property was valued at US$20 000,” Sibanda’s papers read in part.
She said on 8 October that same year, Mafuka and Ndlovu entered into an agreement of sale of the house whereby the property was sold for $20 000 which was under market value.
It is stated that after discovering the irregularity, on 26 October 2018, the beneficiaries (11 of the late Samuel Dube’s children) through their legal practitioners, wrote to Mafuka inquiring how the sale was conducted without their consent and also without them having been awarded an opportunity to buy the property.
Sibanda argued that the contract of sale between Mafuka and Ndlovu was grossly irregular.
“The first issue that the court seeks to determine is whether or not the sale between first and third respondents was grossly irregular, in light of the fact that the beneficiaries objected to the sale, although the fourth respondent consented.
“The first respondent was hasty and took an irrational decision to sell the immovable property under market value despite the fact that there were other movable assets that could be sold, like cattle that the late Samuel Dube left.
“It also goes to show that the first respondent failed to come up with an inheritance plan as he left out some assets.
This failure amounts to a misrepresentation of facts by the first and fourth respondents which renders the final liquidation and distribution accounts one side,” argued Sibanda.
She further argued that the Master of the High Court also acted in an irregular manner by giving authority of the sale of the house knowing very well that the beneficiaries were not in agreement with the proposed sale which also meant that they had consented to the inheritance plan.
She said a special meeting should have been called involving all the beneficiaries and described such failure as a “miscarriage of justice”.
In his response Mafuka disputed Sibanda’s application saying it was a ploy to avoid eviction from the house.
“All the beneficiaries were advised. The only challenge that we faced was initially the issue of the currency which was later abandoned. This application is a ploy by the applicant to avoid eviction which is imminent as I have filed summons for her eviction. She was aware that the house was being sold,” said Mafuka.
Ndlovu also disputed Sibanda’s application saying it was onerous to reverse the whole process for the applicant whose share of property was only equivalent to $780.
She said before she bought the house, she requested the documentation to show that the Master of the High Court had authorised Mafuka to sell the property in question.
“The house in question now belongs to the 3rd respondent. It will be onerous to reverse the whole process for the applicant whose share of property is only equivalent to $780.
The matter is still pending at the High Court.