News / National
Woman loses bid to block sale of trust property
06 Dec 2024 at 08:27hrs | Views
A Harare woman, Ms. Tariro Lebogang Mutenda, has lost her legal battle to prevent businessman Mr. Upenyu Mashangwa from selling a Borrowdale Brooke property to settle a debt of over US$1.6 million.
The High Court, presided over by Justice Amy Tsanga, dismissed Ms. Mutenda's application, finding that the property was never formally transferred to the Mashangwa Family Trust and was owned jointly by Mr. Mashangwa and his late wife, Mrs. Blessing Mashangwa. The ruling affirmed earlier judgments permitting the sale of the property to satisfy outstanding debts.
The property in question, located at 655 Borrowdale Brooke Township, measures 4,428 square meters and was purchased in 2012. Although initially bought in the name of the Mashangwa Family Trust, the trust was not registered at the time of purchase. Consequently, the title remained in the names of Mr. and Mrs. Mashangwa, making it their matrimonial home.
Following Mrs. Mashangwa's death, Ms. Mutenda, her daughter, argued that the property belonged to the family trust, and as a trustee, her approval was required for its sale. She sought confirmation of a provisional order, asserting that the private sale agreement between Mr. Mashangwa and judgment creditor Ms. Jemina Gumbo was unlawful.
Ms. Mutenda contended that the sale violated Rule 71 of the High Court Rules of 2021, which governs execution against immovable property, and bypassed the involvement of the Sheriff. She also cited Section 44 of the Administration of Estates Act, which suspends execution against a deceased person's estate without court approval.
In defense, Advocate Thabani Mpofu, representing Mr. Mashangwa and Ms. Gumbo, argued that the property had been declared executable under a writ issued on March 5, 2020, prior to Mrs. Mashangwa's death. He emphasized that the trust never legally owned the property and suggested it might have been fraudulently established to protect assets from creditors.
Justice Tsanga sided with Adv. Mpofu, ruling that the execution process initiated under the valid writ remained unaffected by Mrs. Mashangwa's death. She noted that Section 44 of the Administration of Estates Act prohibited issuing a new writ posthumously but did not halt execution under an existing writ.
The ruling further confirmed the validity of the writ and previous judgments, none of which had been appealed. Justice Tsanga's decision paves the way for the property's sale to proceed, ensuring compliance with the debt settlement arrangements.
The case highlights critical legal principles concerning the execution of judgments, the ownership of matrimonial properties, and the limits of trust protections in financial disputes.
The High Court, presided over by Justice Amy Tsanga, dismissed Ms. Mutenda's application, finding that the property was never formally transferred to the Mashangwa Family Trust and was owned jointly by Mr. Mashangwa and his late wife, Mrs. Blessing Mashangwa. The ruling affirmed earlier judgments permitting the sale of the property to satisfy outstanding debts.
The property in question, located at 655 Borrowdale Brooke Township, measures 4,428 square meters and was purchased in 2012. Although initially bought in the name of the Mashangwa Family Trust, the trust was not registered at the time of purchase. Consequently, the title remained in the names of Mr. and Mrs. Mashangwa, making it their matrimonial home.
Following Mrs. Mashangwa's death, Ms. Mutenda, her daughter, argued that the property belonged to the family trust, and as a trustee, her approval was required for its sale. She sought confirmation of a provisional order, asserting that the private sale agreement between Mr. Mashangwa and judgment creditor Ms. Jemina Gumbo was unlawful.
Ms. Mutenda contended that the sale violated Rule 71 of the High Court Rules of 2021, which governs execution against immovable property, and bypassed the involvement of the Sheriff. She also cited Section 44 of the Administration of Estates Act, which suspends execution against a deceased person's estate without court approval.
In defense, Advocate Thabani Mpofu, representing Mr. Mashangwa and Ms. Gumbo, argued that the property had been declared executable under a writ issued on March 5, 2020, prior to Mrs. Mashangwa's death. He emphasized that the trust never legally owned the property and suggested it might have been fraudulently established to protect assets from creditors.
Justice Tsanga sided with Adv. Mpofu, ruling that the execution process initiated under the valid writ remained unaffected by Mrs. Mashangwa's death. She noted that Section 44 of the Administration of Estates Act prohibited issuing a new writ posthumously but did not halt execution under an existing writ.
The ruling further confirmed the validity of the writ and previous judgments, none of which had been appealed. Justice Tsanga's decision paves the way for the property's sale to proceed, ensuring compliance with the debt settlement arrangements.
The case highlights critical legal principles concerning the execution of judgments, the ownership of matrimonial properties, and the limits of trust protections in financial disputes.
Source - The Herald
