Chapter 5:14

Missing Persons Act

Acts 28/1978, 17/1979 (s. 17), 29/1981, 20/1991, 20/1994 (s. 16); 9/1997 (s. 10), 22/2001 (s. 4), S.I. 856/1981.

ARRANGEMENT OF SECTIONS

Section

1. Short title.
3. Application for order.
4. Holding of inquiry.
5. Making of order.
6. Powers of Master on making of order.
7. Review of order.
8. Appeal against order.
9. Effective date of order.
10. Effect of presumption of death.
11. Cancellation of order for appointment of administrator.
12. Appointment and removal of administrator.
13. Appeal against decision of Master.
14. Powers of administrator.
15. Failure of administrator to lodge accounts.
16. Release of administrator.
17. Reappearance of person presumed dead.
18. Further application for order.
19. Duty of police officers.
20. Witnesses failing to attend or refusing to be sworn or to give evidence.
21. Contempt of court.

AN ACT to provide for the presumption of death of a person who is missing, or for the care and administration of the estate of such a person; and to provide for matters incidental to or connected with the foregoing.

[Date of commencement: 10th November, 1978.]

1    Short title

This Act may be cited as the Missing Persons Act [Chapter 5:14].

                       2    Interpretation

(1) In this Act—

“administrator” means an administrator appointed in terms of subsection (3) of section twelve;

“court” means a magistrates court;

“Estates Act” means the Administration of Estates Act [Chapter 6:01];

“inquiry” means an inquiry referred to in subsection (1) of section four;

“judge” means a judge of the High Court;

“magistrate” means a regional magistrate or a provincial magistrate;

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“order” means an order in terms of subsection (1) of section five;

“Registrar” means the Registrar of the High Court;

“Registrar-General” means the Registrar-General of Births and Deaths referred to in section 3 of the Births and Deaths Registration Act [Chapter 5:02].

(2) Any reference in this Act to the Master in connection with anything done in relation to an order or the appointment of an administrator or anything else done in pursuance of an order shall be deemed to be a reference to—

• if the person in respect of whom the order as made was ordinarily resident in that part of Zimbabwe defined in the First Schedule to the Estates Act, the Master as defined in that Act;
• if the person in respect of whom the order was made was ordinarily resident in any part of Zimbabwe other than that defined in the First Schedule to the Estates Act, the assistant Master as defined in that Act.

                       3    Application for order

• Any person who wishes to apply for an order in respect of a missing person shall lodge with the clerk of the court of the province in which that person was ordinarily resident immediately before his disappearance an application in the prescribed form accompanied by such other documents as may be prescribed.
• Where the applicant for an order is not a person who is the nearest relative of the missing person, the clerk of the court shall cause such relative to be notified of the application.
• Subject to such directions as a magistrate may deem necessary or desirable, the clerk of the court with whom an application has been lodged in terms of subsection (1) shall as soon as possible publish at the expense of the applicant a notice in the prescribed form—
• once in the Gazette and in a newspaper circulating in the area in which the person in respect of whom the order is applied for was ordinarily resident; and
• in such other newspapers as the magistrate may direct.

(4) A magistrate may give directions in terms of subsection (3) that a notice be published in the journals referred to in that subsection such number of times, not exceeding three, as he may specify.

                       4    Holding of inquiry

• If, after considering the documents referred to in subsection (1) of section three, he considers it necessary or desirable to do so, a magistrate of the court at which an application in terms of that section has been lodged shall, not less than six weeks after the lodging of the application, hold an inquiry in terms of this section into the circumstances of the disappearance of the missing person:

Provided that the magistrate may, on good cause shown, hold an inquiry at any time after publication of the final notice in terms of subsection (3) of section three.

• A magistrate may summon any witness to give evidence at an inquiry by causing a notice in the prescribed form to be served in the manner prescribed on the person concerned and— (a) shall require a witness to take an oath or affirmation in the prescribed form;

(b) may order that a witness be paid the same expenses as he would have received had he given evidence in criminal proceedings before a court.

(3) A magistrate holding an inquiry shall—

• not be bound by any rules of evidence which relate to civil or criminal proceedings and may, subject to any regulations, receive any statement by way of affidavit or otherwise from any interested person or any person who has information relating to the subject of the inquiry:

Provided that a witness who objects to answering any question on the ground that it will tend to incriminate him shall not be required to answer the question or be liable to any penalty for refusing to answer the question;

• cause a record of the proceedings of the inquiry to be kept.

(4) Section 3 of the Courts and Adjudicating Authorities(Publicity Restriction) Act [Chapter 7:04] shall apply, mutatis mutandis, in relation to an inquiry.

                       5    Making of order

(1) If at the conclusion of the inquiry the magistrate is satisfied that the person concerned was ordinarily resident in the area under the jurisdiction of the court and is—

• dead, he shall make an order presuming the person to have died; or
• missing and it is necessary or expedient to do so, he shall make an order declaring that the person is a missing person and authorizing the appointment of an administrator for the care and administration of his estate.
• The magistrate may, in making an order in terms of paragraph (a) of subsection (1), specify the date or the date and time of death for the purposes of determining in terms of the law relating to testate or intestate succession the persons who shall succeed to the property of the person in respect of whom the order has been made.
• The clerk of the court shall, as soon as possible after an order is made, send a copy thereof to the Master.

                       6     Powers of Master on making of order

(1) Notwithstanding section nine, immediately after receiving a copy of an order sent in terms of subsection

(3) of section five, the Master may—

• by notice in writing require—
  • the nearest relative or connection of the person in respect of whom the order was made who is available; or
  • any person who resides at the place at which the person in respect of whom the order was made was ordinarily resident immediately before his disappearance;

to furnish him in writing with such information relating to the person who is the subject of the order or the relatives or property of such person as the Master may specify in that notice;

• if he considers it necessary or expedient, appoint a curator bonis to take custody and charge of the estate of the person who is the subject of the order until an executor or administrator, as the case may be, is appointed and takes the custody and charge thereof.
• The Estates Act shall apply, mutatis mutandis, in relation to a curator bonis appointed in terms of paragraph (b) of subsection (1) and to the appointment thereof as they apply in relation to a curator bonis appointed in terms of subsection (1) of section 22 of that Act.
• Any person who fails to furnish the Master with information required in terms of paragraph (a) of subsection (1) shall be guilty of an offence and liable to a fine not exceeding one hundred dollars.

                       7    Review of order

• The clerk of the court shall, as soon as reasonably possible and in any event not later than twenty-eight days after the making of an order, forward to the Registrar the record of the inquiry together with such remarks, if any, as the magistrate may desire to append.
• The Registrar shall with all convenient speed lay the papers referred to in subsection (1) before a judge in chambers who may—
• confirm the order; or
• substitute an order in terms of paragraph (a) of subsection (1) of section six for an order in terms of paragraph (b) of that subsection or vice versa; or
• set aside the order and remit the matter to the magistrate with such instructions relative to the further proceedings to be had in such matter; or
• set aside the order; as the judge thinks fit and any substituted order in terms of paragraph (b) shall be deemed to be the order of the magistrate in terms of paragraph (a) or (b), as the case may be, of subsection (1) of section five.

                       8    Appeal against order

• Any person who is aggrieved by the making or the refusal of an order may, within one month of the making or refusal thereof, appeal to the High Court.

[Subsection as amended by s. 10 of Act No. 9 of 1997]

• The Supreme Court may, on an appeal in terms of subsection (1), exercise any of the powers set out in subsection (2) of section seven and any order made by the Supreme Court in the exercise of such powers shall be deemed to be the order of the magistrate in terms of paragraph (a) or (b), as the case may be, of subsection (1) of section five.

                       9    Effective date of order

No order, other than an order referred to in subsection (2) of section eight or paragraph (e) of subsection (3) of section seventeen, shall have any effect until—

• the period referred to in subsection (1) of section eight has expired or, if an appeal is noted, until it is determined, abandoned or withdrawn or lapses for want of prosecution; and
• except in the case of an order referred to in paragraph (b) of subsection (2) of section seven, it is confirmed in terms of paragraph (a) of subsection (2) of section

10 Effect of presumption of death

• Where an order has been made in terms of paragraph (a) of subsection (1) of section five, the clerk of the court shall, within seven days of the date the order takes effect in terms of section nine, notify the Master accordingly and send a copy of the order to the Registrar-General and, notwithstanding the Births and Deaths Registration Act [Chapter 5:02], such copy shall be deemed to be a notice of death for the purposes of section 21 of that Act.
• Subject to section seventeen, a person in respect of whom an order in terms of paragraph (a) of subsection (1) of section five has been made shall be deemed for the purposes of any law to have died on the date the order takes effect in terms of section nine, and accordingly any subsisting marriage shall, with effect from that date, be dissolved:

Provided that—

(i) where the magistrate making the order has specified a date or a date and time for the purposes referred to in subsection (2) of section five, the person in respect of whom the order has been made shall, for the purposes of determining, in terms of the law relating to testate or intestate succession, the persons who shall succeed to his property, be deemed to have died on that date or at that time, as the case may be; (ii) notice of death shall be deemed to have been delivered in terms of section 5 of the Estates Act.

11 Cancellation of order for appointment of administrator

Where an order has been made in terms of paragraph (b) of subsection (1) of section five, a magistrate of the court of the province concerned or a judge may—

• before an administrator is appointed, on good cause shown; or
• at any time, if he is satisfied that the person in respect of whom the order is made has reappeared; cancel the order.

12 Appointment and removal of administrator

(1) Where an order has been made in terms of paragraph (b) of subsection (1) of section five, the clerk of the court shall, within seven days of the date the order takes effect in terms of section nine, notify the Master accordingly and the Master shall give notice in the Gazette and in such other manner as he thinks fit stating that such order has taken effect and calling upon the surviving spouse, the nearest relatives and the creditors of the deceased—

• to attend a meeting at his office, at the time therein specified, to be held for the purpose of appointing an administrator of the estate of the missing person; or
• where it appears to the Master necessary or expedient so to do, to attend a meeting before any magistrate, at such time and place as may be appointed, to be held for the purpose of proposing some person to be recommended by such magistrate to the Master as fit and proper to be appointed administrator of the estate of the missing person.

(2) On and after the date of publication of a notice in the Gazette in terms of subsection (1), no person claiming to represent the missing person shall exercise or have authority to exercise any control over any property of the missing person unless—

• he is appointed as administrator of the estate of such missing person; or
• he is duly authorized by the Master or administrator to do so; or (c) the order referred to in that subsection is cancelled.

(3) At the meeting referred to in paragraph (a) of subsection (1) or upon receiving the report of the magistrate referred to in paragraph (b) of subsection (1), the Master may, if he considers it necessary or expedient and the order referred to in subsection (1) has not been cancelled, appoint such person as to him seems fit and proper to be administrator of the estate of the missing person, unless it appears to him necessary or expedient to postpone such appointment and to call another meeting in terms of paragraph (a) or (b) of subsection (1): Provided that—

• if it appears to the Master that the estate of the missing person is manifestly insolvent, it shall not be necessary for him to appoint an administrator;
• if the property of the missing person does not exceed in value such amount as may be prescribed or only isolated transactions involving amounts not exceeding in the aggregate such amount as may be prescribed are required, the Master may cause the estate of the missing person to be administered and distributed, or direct that such estate shall be administered and distributed, in such manner as he thinks fit.

(4) The Master shall at any time—

• before an administrator has been furnished with a certificate in terms of subsection (6); or
• after an administrator has been furnished with a certificate in terms of subsection (6), when he is ill, absent or for any other reason unable to perform his duties; have power to make any disbursements from the estate of the missing person which are necessary for the maintenance of any of his dependants or the safeguarding of his property.
• An administrator shall, unless the Master otherwise directs, furnish security to the satisfaction of the Master for the due and favourable care and administration of the estate and may for that purpose furnish a fidelity bond the premiums for which shall be payable out of the estate of the missing person.
• As soon as any security required in terms of subsection (5) has been furnished the Master shall furnish the administrator with a certificate in the prescribed form of his appointment and of his authority to have the custody and administration of the estate of the missing person.
• An administrator—
• shall, subject to subsection (2) of section fourteen, have the same duties and obligations as an executor appointed for the administration of the estate of a deceased person in relation to the lodging with the Master of an inventory or additional inventory of the property of the missing person and of accounts of his administration, and in respect of any such inventory or accounts the same stamps and fees shall be payable as in the case of the estate of a deceased person; and
• shall be allowed the same remuneration, to be fixed by the Master, as in the case of an executor of the estate of a deceased person.
• Sections 116, 117 and 118 of the Estates Act shall apply, mutatis mutandis, in relation to an administrator.
• Where—
• an administrator dies, is absent or becomes incapable of so acting; or
• the certificate referred to in subsection (6) has, in terms of subsection (8), been revoked;

the Master may appoint a person in substitution of such administrator and such appointment shall be deemed to be an appointment in terms of subsection (3).