GUVAVA J: The
applicant filed this application seeking an order for the eviction of the
first, second and third respondents and costs of suit. The facts of this case
can be summarized from the founding affidavit filed by Lovemore Magwenzi. These
are as follows:
The
applicant is the executor of the estate of the late Robert Tendayi Magwenzi
(hereinafter referred to as the deceased). The deponent of the founding
affidavit is acting in terms of a special power of attorney granted to him by
the applicant. The first and second respondents are his nieces whilst the third
respondent is his nephew. The deceased passed away on 3 August, 2000. At that
time he was resident at house number 9399 Unit "K" Seke, Chitungwiza
(“the property”). The property had been sold to him by his brother, the
respondents' father, in 1995 and subsequently transferred into his name. Upon
his death he left a will in which he bequeathed the property in question to his
second wife Patricia Chitongo. It is alleged that the respondents have forcibly
taken up occupation of the property and refuse to vacate arguing that the
property belongs to their father. In support of the application a copy of the
agreement of sale purportedly entered into by the two brothers for the sale of
the property dated 5 February 1995 has been attached together with the deed of
transfer dated June 1995 and a copy of the deceased's will.
The application was opposed by the
three respondents. They raised two points in
limine. They submitted firstly that Lovemore Magwenzi had no locus standi to institute the
proceedings as he is not the executor of the estate. They also stated in their
opposing affidavit that the matter before the court was res judicata as it had already been determined by the Magistrates'
court. On the merits they stated that their father had never sold the property
to the deceased. They alleged that the agreement of sale was a forgery and was
not signed by their father. They further allege that the will was a forgery as
it was produced eight years after the death of the deceased. They also state
that Patricia Chitongo has since passed away and the applicant is merely
pursuing the matter so that he can claim the property for himself. They deny
having forcibly occupied the property and say that they inherited it from their
father's estate. The respondents submit in their heads of arguments that the
application contains material disputes of facts which cannot be resolved on the
papers without hearing oral evidence. They thus pray that the matter be
dismissed with costs.
The issues that fall for
determination before me are as follows:
- Whether the applicant has locus standi in this matter;
- Whether the matter is res judicata; and
- Whether or not the matter contains material dispute
of fact which cannot be resolved on the papers.
At
the commencement of the proceedings Mr Tawona
submitted that he was abandoning the second issue that he had raised as a point
in limine. He stated that after
having gone through the record of proceedings in the Magistrates' court, he was
now of the view that the matter before me was not res judicata. In my view the concession made is proper. The
requisites for a successful plea of res
judicata have been set out in a number of judgments from this court and the
Supreme Court. The plea of res judicata
is a form of estoppel to bring
finality to litigation which has been determined by a court of competent
jurisdiction. The court must be satisfied that the previous matter was between
the same parties or their privies, must have been on the same subject matter,
founded on the same cause of action and the earlier court must have given a
final and definitive judgment on the matter. (See Kawondera v Mandebvu S
12/06, 'O' Shea v Chiunda 1999 (1)
ZLR 333 and Le Roux v Le Roux 1967 (1) SA 446)
An examination of the record from
the Magistrates' court shows that the case before that court was indeed
pertaining to the same parties, on the same subject matter and with the same
cause of action. The applicant in that case instituted proceedings to evict the
respondents. However a reading of the judgment shows that the applicant's
counsel is correct in arguing that the requirements for a plea of res judicata have not been fully
complied with as it is quite apparent that the magistrate in that case
determined that he could not deal with the matter as he lacked jurisdiction.
Having said that he was clearly not a court of competent jurisdiction to have
dealt with the matter and correctly dismissed the application.
The respondents counsel submitted
that the point of locus standi should
be upheld as it has merit. He submitted that Lovemore Magwenzi could not
lawfully stand in the place of the executor unless the Master of the High Court
had authorized him to do so. He argued that Lovemore Goredema was the executor
testamentary of the deceased's estate. The deceased's will gave him assumptive
powers in terms of paragraph 3 of his will. The executor thus could only
appoint another in his place in terms of section 28 of the Administration of
Estates Act [Cap 6:01] (“the Act”).
He argued that as he had not done so Lovemore Magwenzi was not properly before
the court and the application should fail on this basis. He further submitted that the special power
of attorney signed by the executor on 23 February effectively handed over
complete control of the executors functions to Lovemore Magwenzi. He thus
argued that the executor had abdicated in his functions.
The
applicant's counsel submitted in response that the executor had not in any way
abdicated in his functions. The power of attorney was made specifically to
authorize Lovemore Magwenzi to prosecute this matter. He argued that the
executor had filed the application in the Magistrate's court and when that
application was dismissed he decided to ask Lovemore Magwenzi to act on his
behalf in this matter. He also submitted that section 28 of the Act had no
application in this case as Lovemore Goredema was still the executor in the
deceased's estate.
I, however, did not find any merit
in the applicant's argument. Firstly an examination of the record of the
Magistrates' court shows that although the matter was filed in the name of the
executor the person who actually appeared and gave evidence was Lovemore
Magwenzi. Apart from using the executor's name in the application he did not
play any role at all in the matter. In my view it was Lovemore Magwenzi who
also dealt with the matter at that court.
In the case before me the executor has not filed any papers in support
of the application. Although his name has been used in the application before
me the information contained in the papers relate to Lovemore Magwenzi who
refers to himself as the executor. It
would seem to me that the respondents' are correct when they state that the
executor has no interest in the matter but it is Lovemore Magwenzi who has
always taken an active role in this matter.
Secondly
the wording of the special power of attorney does not appear to restrict the
powers that have been given to Lovemore Magwenzi by the executor. It is in my
view necessary to set out in full the wording of the special power of attorney.
It states:
"I,
Lovemore Goredema born on 9 November 1948 and identity number 63-449191L 63 of
15 Kwadikwidi Street Chitungwiza do hereby appoint Lovemore Kuwawoga Magwenzi
born 25 October 1947 I.D Number 63-166393 X 47 of 6193, 87th
Crescent, Glen View 3 Harare to be my lawful agent to represent me as an
executor of the estate late Robert Tendayi Magwenzi DR 364/2001." (underlining
is my own)
A
proper interpretation of the wording of the power of attorney in my view
appears to grant Lovemore Magwenzi all the powers granted to the executor to
administer the estate of the deceased instead of the executor. The power of
attorney does not restrict or limit Lovemore Magwenzi's power with regards to
the estate. His appointment as agent is not just for the purpose of prosecuting
this matter but it appears to authorize him to do everything that the executor
would do in respect to the estate.
Mr Muhlolo
argued that what the executor had done was delegate his functions and he relied
on the case of Shata & Anor v Manase N.O. & Anor HH 44-03 where
this very point was discussed. At p 2 of the cyclostyled judgment KAMOCHA J stated
as follows:
"In my view, an executor can authorise some other
person to carry out some or all of his functions on his behalf. In Bramwell & Lazar N.N.O v Lamb 1978 (1) SA 380 COLMAN
J had this to say at 283H:
'It is a common practice, and a convenient one for an
executor to authorise his co-executor or some other person to carry out some or
all of his functions on his behalf'.
The learned judge continued at p 384A and said:
'An executor, as I see the matter, may not appoint
someone to act instead of himself, so as to relieve himself of responsibility;
but he may appoint someone, for whose acts he will be responsible, to act on
his behalf, and that is what, in my judgment, the second plaintiff did in the
present case'.
What
an executor is prohibited to do is abdication, not delegation."
In
the above stated case the executor, a legal practitioner, asked a clerk in his
law firm to negotiate and sign an agreement of sale relating to an estate
property on his behalf. He also authorized another legal practitioner to sign
the power of attorney to pass transfer. He could not conclude the sale himself
as he was in the United
States of America on business. The wife of
the deceased sought to renege on the sale as the prices had escalated. Mr Manase
sought to challenge the legality of the sale on the basis that he had not
concluded the sale. The court in that case correctly held that the clerk had
been authorized to conclude the sale on behalf of the executor. These facts can
be distinguished from the facts of this case where the executor has done
nothing at all in relation to the estate. The only person who is acting on
behalf of the estate is Lovemore Magwenzi. It would seem to me from the
evidence placed before me that Lovemore Goredema has effectively abdicated his
functions as executor in favour of Lovemore Magwenzi and this he cannot do.
Even if I am wrong in coming to this
conclusion I take the view that the executor, being an executor testamentary,
could only delegate his function in terms of the Act. D. Merowitz in "The Law and Practice of Adminstration of
Estates" 3rd ed at p 77 states that an executor may only
assume a co-executor to act with him in the administration of the estate if he
was expressly given this power by the will of the testator. It is apparent that the executor in this case
had the power of assumption that he was granted in paragraph 3 of the will.
Where an executor assumes another person as executor by virtue of a power
conferred upon him in terms of a will then s 28 of the Act must apply. The
section provides as follows:
“28 Assumption of executor under power
contained in will
(1) Nothing in
this Act shall prevent a testamentary executor from assuming another person as
executor under a power conferred on him by the testator in his will or codicil:
Provided that no
person shall be entitled or qualified to act as assumed executor unless –
(a) he is the
testator's surviving spouse or next of kin or is registered in terms of the
Estate Administrators Act [Chapter 27:20]; and
(b) the Master
has granted him letters of administration as such during the lifetime of the
testamentary executor.
(2) The Master
shall grant a person letters of administration as an assumed executor in terms
of subsection (1) if the Master is satisfied that the power of assumption under
the will or codicil concerned has been properly exercised.
(3) Every
provision of this Act and any other law relating to executors shall apply to
persons who are assumed as executors under this section.
[Section
substituted by section 68 of Act 16 of 1998]”
My
understanding of this provision is that where a testamentary executor decides
to assume another person as executor of the estate the person concerned must be
a relative of the deceased and the Master must approve the appointment. In
other words a person who is appointed by a testamentary executor as an executor
may only assume executorship provided there is compliance with both paragraphs
(a) and (b) of subs (1). In my view the applicant in this case complied with
the first part as he chose Lovemore
Magwenzi, who is a brother of the deceased and may thus be considered as a next
of kin. The applicant has however not complied with the second part which
requires that the Master grant Lovemore Magwenzi letters of administration.
I find therefore that the respondent
has successfully shown that Lovemore Magwenzi has no locus standi to seek the eviction of the respondents. On this basis
the point in limine raised by the
respondents succeeds.
Costs
as a general rule follow the cause but in this case it was submitted by the
parties that no order should be made with regards to costs.
In the result I make the following
order:
- The application is hereby dismissed.
- The costs of this application shall be costs in the
cause.
Mushonga, Mutsairo & Associates, applicant's legal
practitioners
Muza & Nyapadi legal
practitioners, 1st, 2nd and 3rd
respondents' legal practitioners.
