BULAWAYO – The Bulawayo High Court has refused to compel the transfer of a Kwekwe house sold nearly 25 years ago after ruling the agreement was illegal, but ordered the seller to pay the buyer’s estate US$35,000 to prevent her from benefiting from her own unlawful conduct.

Justice Mpokiseng Dube found that Rita Hwata had no legal authority to sell the Mbizo property in April 2001 because she had not yet been appointed executrix of her late husband Douglas Hwata’s estate and had failed to obtain the Master of the High Court’s consent as required by law.

The court declared the agreement with the late Bernard Timothy Hove null and void.

Hove had paid the full purchase price in 2001, and his family has occupied the property continuously since then. After Hove died in 2004, Phillip Hove, acting as executor of his estate, sued for transfer of ownership or, alternatively, damages.

Hwata opposed the claim, arguing it had been prescribed because more than three years had elapsed since the sale. She also maintained that the contract was invalid because she lacked the legal capacity to sell the property.

Justice Dube rejected the prescription argument, ruling that the debt had not become due in the circumstances of the case.

However, the judge agreed the sale itself was unlawful.

“It is an undisputed fact that Rita Hwata was not the executrix of her late husband’s estate when she signed the agreement in April 2001,” Justice Dube said.

The court said the estate property can not be sold without the authority of a duly appointed executor, and the consent of the Master was required under Section 120 of the Administration of Estates Act.

As a result, the court refused to order specific performance, saying it could not compel the transfer of property under an illegal agreement.

But Justice Dube found that allowing Hwata to retain both the house and the purchase money would amount to unjust enrichment.

“The court cannot ignore the fact that the 1st defendant (Rita Hwata) entered into a transaction, took the purchaser’s money, and allowed him and his family to live in the house for nearly a quarter of a century,” the judge said.

“To allow the 1st defendant to now claim the house back without any consequence, relying on a nullity that she herself created… would be to permit the law to be used as an instrument of fraud.”

The judge noted that after being appointed executrix in December 2001, Hwata could have approached the Master to regularise the transaction but failed to do so for more than two decades.

The court ordered Hwata in both her personal capacity and as executrix of her late husband’s estate to pay Hove’s estate US$35,000 within 90 days as compensation for unjust enrichment.

Until the money is paid, the Hove family will be entitled to remain in occupation of the property under a right of retention and can not be evicted.

Hwata was also ordered to pay the legal costs of the suit.