CHITAKUNYE
J: This matter was referred to me in chambers in terms of the provisions of
Order 38, Rule 313 of the High Court Rules, 1971. The basic background is as
follows:
In
1976 the late Muchineripi Rishon Gonyora (hereinafter referred to as the
deceased) married the respondent in terms of the African Marriages Act, [Cap 5:07]. The deceased died on 13
August 2002 in Harare.
Barbra Gonyora registered the deceased's estate at Harare Magistrates Civil and
Customary Law Courts. On 17 October 2002 an edict meeting was held before a
Provincial Magistrate. The respondent was appointed executrix dative with the
powers to ascertain and verify the assets and liabilities of the deceased,
which included documentary proof of current bank balances, documentary proof of
liabilities, balances with mortgage, a plan of how the estate was to be
distributed among the beneficiaries and presentation of that plan before a
magistrate on an agreed return date for approval.
On
25 August 2005 while the executrix was still to lay the distribution account
and inheritance plan before a magistrate and this was close to three years
after her appointment, the Master called her for a special meeting on 30 August
2005 to discuss all matters related to her late husband's estate. She duly
attended the meeting with other beneficiaries of the estate. At that meeting
the Master appointed the claimant as a curator bonis in the estate. Letters of confirmation were granted to the
claimant by the Master on the following day.
On
25 September 2005, the Master purporting to be acting in terms of s 25 of the
Administration of Estates Act; [Cap 6:01],
gave notice in the Gazette of an edict meeting to be held at his offices on 5
October 2005. The notice was however gazetted on 7 October 2005, two days after
the meeting.
The
applicant and other beneficiaries however attended the meeting as they had been
notified by other means. At that meeting the curator bonis was then appointed as executor dative. He there after went about carrying out the duties of his
office and compiled a First and Final Liquidation Account of the estate. His
involvement was first challenged by the filing of the first court application,
case no. HC 5567/05. He thereafter sought to dispose certain assets of a
company with the Master's consent in order to satisfy payments to certain
beneficiaries and estate duties. This led to the filing of an urgent
application by respondent in HC 221/06.
In
both applications the respondent, who was the applicant, submitted that she was
properly appointed by the Master as the executrix dative, further that she was
not lawfully removed before the Master appointed the claimant and lastly that
that appointment by the Master of claimant was in her view therefore void.
The fate of the two applications was decided on 19 May 2006, by KUDYA J
when he made an order that -
“1. The appointment of the second respondent Mr.
Kenias Mutyasira as the Executor Dative to the Estate, late Muchineripi Rishon
Gonyora DRH1989/02/DR1854/05 be and is hereby declared null and void.
- The appointment of Barbra Gonyora, the surviving
spouse, as Executrix Dative to the Estate late Muchineripi Rishon Gonyora
DRH 1989/02/DR1854/05 on 17 October 2002, be and is hereby declared valid.
- The fees of second respondent for administering the
estate shall be paid by the estate up to the date that second respondent
was served with the application in case No. 5567/05.
- The second respondent shall return all the assets and
documents of the estate under his custody and control to the applicant
within ten days of this order.
- The costs in case No. 5567/05 and HC 221/06 including
the costs of the hearing of the urgent application of 25 January 2006
shall be borne by the Estate Late Muchineripi Rishon Gonyora.”
The claimant was not satisfied with some aspects of the
judgment and so appealed to the Supreme Court. That appeal was dismissed with
costs on 28 May 2007. (See Kenias
Mutyasira v Barbra Gonyora and Master of the High Court SC 80/06).
The claimant made effort to be paid his dues as Curator
bonis and as Executor dative in terms
of the judgment by KUDYA J. Such effort was resisted by respondent who
contended that he could only be paid when the estate had been wound up. In this
regard there is a letter by respondent's legal practitioners to claimant dated
June 15, 2007 in which they stated in paragraph 2 thereof, inter alia, that:
“Your claim for
costs will be dealt with during the ordinary course of winding up of the
estate.”
On 29 June 2007
respondent's legal practitioners sent another letter to claimant in which they
stated categorically in the second last paragraph that:-
“Your fees are
calculated from the assets of the estate. They are therefore only determinable
after the Account reflecting the assets of the Estate has been drawn and
lodged.”
On 30 January 2008 the parties held a meeting with the
Master. The issue for discussion pertained to the payment of executor's fees
and finalization of the estate. In that meeting Mr. Mutyasira is recorded as
having submitted that his bill should be taxed to enable him to lodge his claim
for payment. Respondent's counsel, Mr. Chikumbirike
is recorded as having reiterated that Mr. Mutyasira's fees remain due until the
estate is wound up not when the court order was granted. The Master resolved
that Mr. Mutyasira should lodge his bill for taxation on the following day.
Apparently no taxation took place as the Executrix
dative Barbra Gonyora had not yet drawn up the estate's account. It was only on
25 September 2009 that she advertised the First Interim Administration and
Distribution Account for the estate. The account was drawn up in United States
dollars.
On 11 January 2010 Mr. Mutyasira presented his bill for
taxation in respect of fees for work done as a Curator Bonis and as Executor Dative of the estate late Muchineripi Rishon
Gonyora.
On 3 March 2010 the parties appeared for taxation.
After deliberations and arguments by both sides, the Taxing officer Mr. S. Madi
made the following decision:
“1. That Mr. K.
Mutyasira is entitled to 10% of the gross value of the estate in terms
of the provisions of the Estate Administrators (Registration and Examination)
(Amendment) Rules, 2007 (No. 1) for his work as Curator Bonis; and
- that for his work as an Executor, Mr. K. Mutyasira is
entitled to 50% of the fees claimed by the Executrix Barbra Gonyora.”
At that meeting Mr. Mufara
representing Barbra Gonyora objected to have the Curator's and Executor's fees
for Mr. K Mutyasira being paid in United States dollars as he argued that the
judgment by KUDYA J was premised on Zimbabwean dollars and in any event, the
work had been done in 2005 when the Zimbabwean dollar was still in circulation.
Mr. K Mutyasira on the other hand insisted that payment had to be in United States
dollars.
Faced with the above the taxing officer referred the
issue to me for determination in terms of Order 38 Rule 313 of the High Court
Rules. That rule states that:
“The taxing
officer may, without filing any formal documents submit any point arising at a
taxation for decision by a judge in chambers, and it shall be competent for the
taxing officer and for the legal practitioners who appeared at the taxation to
appear before the judge respecting such point.”
The issue for determination is whether or not
Mr. K. Mutyasira is entitled to be paid in United States dollars for his
Curator's and Executor's fees when that work was done in the year 2005 when the
Zimbabwean dollar was still in circulation.
I
invited the parties to file heads of argument dealing specifically with that
issue.
The
claimant's position was to the effect that he should be paid in United States
dollars as that is the currency in which the account was presented. He argued
that the judgment by KUDYA J did not refer to the currency to be used. Although
the work was done in 2005 and, as per the judgment by KUDYA J, he should only
be paid up to when he was served with the application challenging his
appointment, he could not have his bill taxed then due to the litigation in
this matter which was protracted. Though at one stage he liquidated some estate
property to pay some beneficiaries he could not legally pay himself at the time
due to the litigation that was ongoing. He also pointed out that in any case
counsel for respondent made it clear that Mr. Mutyasira's bill could only be
taxed after the account had been drawn up. To that effect he referred to
correspondence from respondent's legal practitioners dated 15 June 2007 and 29
June 2007 buttressing that point. It was claimant's contention that in light of
all this, his fees fell due and payable in September 2009 when the First
Interim Administration and Distribution Account was lodged.
The
respondent on the other hand contended that claimant must be paid in the
currency that was obtaining at the time the work was done which is the
Zimbabwean dollar. Respondent's attitude was also to the effect that by
referring the issue to me I was in effect being asked to review KUDYA J's
judgment. As far as KUDYA J's judgment
was passed long before the multi-currency regime came into force it could only
have related to payment in Zimbabwean dollars. It is my view that counsel for
respondent missed the point. The point is not about reviewing the order by
another judge. The judgment by KUDYA J set out the period for which claimant
must be paid. The period was set as from the time of his appointment to the
time when he was served with a court application challenging his appointment.
That period is not being challenged at all. The issue was merely in what
currency should claimant be paid in light of the multi-currency regime that
came into effect well after the judgment but before claimant had had his bill
assessed and taxed. That issue can be resolved by looking at the basis for
assessing the fees and when they should be paid.
Section
56 of the Administration of Estates Act, [Cap
6:01], herein after referred to as the Act, states that:
“Every executor
shall, in respect of his administration, distribution and final settlement of
any estate, be entitled to claim, receive or retain out of the assets of such
estate, or from any person who as heir, legatee or creditor is entitled to the
whole or any part of such estate, such remuneration as may have been fixed by
the deceased by will or deed or otherwise as fair and reasonable compensation
to be assessed and taxed by the Master, subject to the review of the High
Court, upon the petition of such executor or of any person having an interest
in such estate.”
Section 96 of the Act states
that:
“Every tutor,
either testamentary or dative, and every curator, either nominate or dative,
shall, in respect of his administration and management of any estate, be
entitled to claim, retain and receive out of the assets of such estate a
reasonable compensation for his care and diligence in the said administration,
to be assessed and taxed by the Master, subject to the review of the High Court
or any judge thereof, upon the petition of any such tutor or curator or of any
person having an interest in the said estate.”
In
casu the taxing officer upon being
presented with the claim assessed and taxed the bill. He came to the conclusion
that for claimant's role as curator dative for the period that he so acted a
reasonable compensation is 10% of the gross value of the estate. He based that
assessment on the provisions of Part C to the Estate Administrators
(Registration and Examination) (Amendment) Rules, 2007, S.I 54/07 which
provides for the remuneration of tutors and curators in percentage terms in
relation to the value of the capital assets. That part provides remuneration of
5% on the value of capital assets on assuming control and 5% on the value of
capital assets upon termination of control. This is how the officer appears to
have come to a total percentage of 10% of gross value of the estate.
For
his role as executor dative for the period up to when his office was
challenged, the taxing officer came to the conclusion that a fair and
reasonable compensation for the duties and work he did during that period is
50% of fees claimed by the Executrix Barbra Gonyora.
The
awards in percentage terms were not challenged in respect of the two roles he
performed in relation to this estate.
In
as far as the fees for curator bonis
are based on the value of capital assets it is my view that it is akin to
claimant retaining 10% of the estate as his fees. If that were to happen surely
no one would begrudge him if he decided to dispose that portion in a currency
of his choice. As is stated in section 96 of the Administration of Estates Act,
supra, the executor is “..entitled to
claim, retain and receive out of the assets of such estate a reasonable
compensation for his care and diligence in the said administration,…” The 10%
that claimant was awarded as his fees can not, in my view be converted to the monetary
value of such 10% in the year 2005, it is a 10% value of capital assets which
he is entitled to retain. An award in
percentage terms does not really matter in which currency it is realized as
long as at the end of the day it remains 10% of the value of the capital
assets.
In
the same vein on examining the work done by the claimant the taxing officer
came to the conclusion that a fair and reasonable compensation for all that he
did was an award of 50% of the fees claimed by Barbra Gonyora. That having been
expressed in percentage terms makes it not to be affected by the change of
currencies. All that has to be ensured is that his fees are 50% of the fees
claimed by Barbra Gonyora, no less and no more. In as far as Barbra Gonyora has
lodged the account in United
States dollars surely the percentages should
be calculated using that currency.
Counsel
for respondent did not in their submissions deny that it was necessary for
claimant to wait till Respondent had lodged the account to have the Master
assess and tax his fees. I also did not see any proposal of how they hoped to
calculate claimant's fees in Zimbabwean dollars when the executrix had used the
United States
dollars. In fact in their own letter dated 29 June 2007, which has already been
referred to above, respondent's legal practitioners stated to claimant that -
“Your fees are calculated from the assets
of the estate. They are therefore only determinable after the Account
reflecting the assets of the Estate
has been drawn and lodged.”(emphasis is mine)
Reference
was made to the case of The Estate late
Patrick Matimura HH12-10. In that case a legal practitioner was appointed
executor. In presenting his bill to the taxing officer the executor sought to
rely on the Law Society tariff of 2009 for work done from the year 2005 up to
2009. The taxing officer felt constrained to pass the bill as he felt it was
not competent for the executor to rely on the Law Society of Zimbabwe tariff
for work done before that tariff came into operation. The taxing officer was
dealing with a bill based on the Law Society of Zimbabwe tariff. It was in
those circumstances that BERE J. at page 3 of the cyclostyled judgment said
that:
“It is clear
that the taxing officer was within his rights to demand that work done in 2005
be charged in accordance with the relevant and applicable Law Society tariff as
at that year. In my view the subsequent years ought to have followed the same
approach. It was certainly not competent for the executor to seek to rely on
the tariff of September 2009 in his computation of fees due to him for any work
done before that date. Such an approach was clearly a violation of the Law
Society guidelines.”
At page 4 of the
same judgment the judge went on to say that -
“In any event it
is inconceivable in my view that the Law Society would encourage its members to
recoup their legal fees in United
States dollars for the time when it was
illegal in this country to deal in foreign currency without complying with the
relevant exchange control regulations.”
I
agree with the learned judge on the above view. It is however important to
distinguish that scenario from the present. In HC 12/10 the tariff was set on
an annual basis. The tariffs were changed from year to year. For each year
legal practitioners were expected to charge as per the tariff. In casu the basis for the fees is not on
given tariff but on percentage basis.
Regarding
curator's fees the percentage is based on the value of the capital assets of
the estate in terms of the provisions of the Estate Administrators
(Registration and Examination) (Amendment) Rules, 2007, S.I. 54/07. That
percentage has not changed or been altered upon the advent of the
multi-currency regime. It is that percentage that claimant was awarded. It
would appear to me that the legislature opted to tie the curator's fees to the
value of the assets for a purpose. It may as well be that it was to ensure that
the curator got a just compensation for his role as curator and that such
compensation be related to the value of the assets involved.
In
taxing and assessing the executor's fees the taxing officer opted to award it
in percentage terms in relation to the Executrix Barbra Gonyora's claim and did
not use the Law Society tariffs. The executrix fees were presented in United States
dollars. It is common cause that the executrix was appointed and did some of
the work before the multi-currency regime yet she did not seek to be paid in
Zimbabwean dollars for that work. She did not divide her remuneration into two
different eras. She is clearly seeking to be paid in United States dollars for
work done during the Zimbabwe dollar period because her remuneration is
due after she has completed the work and
the Master has assessed and taxed it. That has been done in a multi-currency
era hence her fees are expressed in US dollars. I am of the view that the 50%
awarded to claimant is of the executrix's claim in value terms. If the claimant
is to realize that percentage in value terms, he should be paid in the same
currency as the executrix. If payment is made in any other currency it must be
such that it equates to that percentage award. Payment in a currency and amount
that would not equate to 50% would not accord with the award. It would thus not
be a fair and reasonable compensation.
Accordingly,
I am of the view that claimant is entitled to be paid his compensation or fees,
for both roles as curator and as executor, as assessed and taxed by the taxing
officer in the currency in which the account was prepared and lodged, that is
in United States dollars.
Wintertons, Claimant's legal practitioners
Chikumbirike & Associates, respondent's legal practitioners
The Master, High
Court of Zimbabwe
