This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.
The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.
The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.
Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.
Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.
The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).
The factual background to the application can be summarised as follows:
The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.
The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.
The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.
The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.
After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.
To note is that the Will, which was drafted by the first respondent, confers executorship on her.
She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.
FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.
The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.
There is litigation in Botswana over the legitimacy of the first respondent's executorship.
The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.
The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.
The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:
(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;
(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;
(iii) The Will makes reference to some persons without stating their actual identities;
(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;
(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;
(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.
The Will is therefore fake and the estate of the deceased should proceed under intestacy.
The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.
The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.
Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.
The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.
The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.
Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.
The first respondent continues to take the law into her own hands to the detriment of the applicants.
There is no other alternative remedy to protect the rights of the applicants.
There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.
The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.
They thus seek a provisional order in the following terms:
“TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made in the following terms:
1. The application is hereby granted.
2. The provisional order granted in this matter is hereby confirmed.
3. It be and is hereby declared that:
3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and
3.2 The deceased died intestate.
4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.
5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.
6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.
7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and
8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).
INTERIM RELIEF GRANTED
Pending the return date, the applicants are hereby granted the following interim relief:
1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and
2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”
The first respondent strenuously opposes the application and raises several points in limine as follows:
(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision.
(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.
(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.
(4) The requirements of an interim interdict have not been met; and
(5) There is no competent cause of action.
In my view, points 3, 4 and 5 touch on the merits of the case...,.
On the merits, the first respondent made the following submissions:
The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.
She denied refusing to give a copy of the Will to the applicants as alleged.
The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.
The Lamborghini motor vehicle has not been disposed of.
Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.
The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.
The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.
The applicants have various remedies at their disposal.
They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.
In their heads of arguments, the applicants made the following submissions:
The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.
The balance of convenience favours the applicants.
The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.
The first respondent made the following submissions on the merits in her heads of argument:
The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.
The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.
The applicants have failed to exhaust their domestic remedies.
The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):
(a) A prima facie right, though open to doubt;
(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;
(c) The balance of convenience favours the granting of interim relief; and
(d) That the applicant has no other satisfactory remedy.
See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..
I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.
I find comfort, however, in the fact that the right referred to is prima facie only.
I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:
“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.
It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.
Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.
That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.
Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”
The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.
The acceptance of any document that does not meet all the requirements is not a walk in the park.
In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.
This is what I would refer to as 'live' issues that need to be considered.
The applicants, in other words, have a reasonably arguable case, prima facie, on review.
The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.
The whole basis of the inquiry is to arrive at the truth and rule out fraud.
If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.
The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.
The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?
What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?
The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;
“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”
And yet, the first respondent went on to advertise the estate account as lying for inspection.
According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.
In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.
Their apprehension in the face of the first respondent's admitted conduct is valid.
The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.
Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.
Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.
The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.
The balance of convenience, in my view, favours the applicants who are beneficiaries.
Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.
Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.
The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.
On costs, I do not see anything warranting the award of costs at this interim stage.
I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.
The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.
This may entail having the return date expedited.
For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:
1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.
2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.
3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.
4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.
