Let
me first refer to the relief sought by the applicant and the first respondent
in the two cases before me.
In
case no. HC1351/13, in which the first respondent is the applicant and the
applicant is the first respondent, the first respondent seeks the confirmation
of the provisional order in terms of the final order in the following terms;
“1.
The approval, on 2 October 2012, of the Interim Administration and Distribution
Account of estate late and Muchineripi Rishoni Gonyora be and is hereby
declared null and void.
2.
That the transfer of the shares done by the first respondent and facilitated by
second and third respondents be and is hereby set aside.
3.
That the first respondent be and is hereby ordered, in her personal capacity,
to pay costs of suit on an attorney and client scale.”
In
the other case no. HC2770/13, in which Barbra Gonyora is the applicant and
Kenias Mutyasira, the first respondent, which is a court application, the
applicant seeks declaratory relief in the following terms:
“It is
declared that;
1. No
rights accrue to the first respondent and no obligations are assumed by the
estate of the late Rishoni Muchineripi Gonyora towards the first respondent
stemming from his void appointment either as curator bonis and/or executor dative to the estate of the late
Rishon Muchineripi Gonyora.
2.
Further, that any actions taken by any of the parties herein which purported to
assert such rights against estate of the late Rishoni Muchineripi Gonyora or to
assume such obligations on behalf of the deceased's estate are in themselves
void ab initio and unsustainable being
actions premised on a void act.
3.
Further, that for the avoidance of doubt, any award of fees for curatorship and
curatorship in the estate of late Rishoni Muchineripi Gonyora to the first
respondent following the declaration of his appointment as null and void be and
is hereby declared null and void ab origine and of no
effect.”
For
the purposes of this judgement, I shall refer to BEAUTY GONYORA N.O. as the
applicant and KENIAS MUTYASIRA as the first respondent. All the other
parties who are not very relevant in the issues involved would be referred to
as other respondents.
This
is so despite the fact that Beauty Gonyora N.O. is only the applicant in Case
No. HC2770/13 and the first respondent in HC1351/13 and Kenias Mutyasira is the
applicant in HC1351/13 and first respondent in HC2770/13….,.
It
may be difficult to understand the dispute between the parties without giving
the full background facts of the long history of acrimony and litigation
between the parties for over a decade which even spilled to the Supreme Court. The
facts of the matter are largely common cause and are summarised in the various
judgements delivered. I shall simply summarise them for the purposes of
completeness.
The
applicant (Barbra Gonyora) married the late Muchineripi Rishon Gonyora in 1976
in terms of the African Marriages Act [Chapter 2:38], the percusor to the present [Chapter 5:07]. The
deceased, Muchineripi Rishon Gonyora, died on 13 August 2002 in Harare and is
survived by a number of children who are cited as respondents in both
matters. The applicant registered the deceased's estate at the Harare
Civil and Customary Law courts on 17 October 2002. The applicant, being the
widow was appointed executor dative and was to prepare a distribution plan for
presentation to the magistrate for approval. Apparently, the applicant,
for three (3) years, was not able to do so, and on 30 August 2005, the Master
of the High Court (the Master) called a special meeting to discuss all matters
relating to the estate of late Muchineripi Rishon Gonyora. The applicant and
other beneficiaries, some of which had not attended the meeting at the
Magistrate's Court in 2002, attended this meeting. At this meeting, the
first respondent, Kenias Mutyasira, was appointed curator bonis in the estate. On 7 October 2005, the first
respondent was appointed executor dative of the estate of the late Muchineripi
Rishon Gonyora.
This
marked the start of protracted and seemingly unending bruising legal battles
between the applicant and the first respondent….,. As already said, the context
and the nature of the relief sought by either the applicant or the first
respondent in these two matters can only be better understood when one deals
with the history of the dispute between the parties. I now proceed to do so.
The
first legal battle was commenced by the applicant, in HC221/06, in the matter
of Barbra Gonyora v The Master and Kenias Mutyasira, a court application in
which she sought the nullification of the appointment of the first respondent
by the Master of the High Court as the executor dative to the estate of the
late Rishoni Muchineripi Gonyora. The matter was argued before my brother
KUDYA J who made the following order;
“1.
The appointment of the 2nd respondent, Kenias Mutyasira, as the
Executor Dative to the estate of late Muchineripi Rishoni Gonyora DRH1989/02
DR1854/05 be and is hereby declared null and void.
2. The
appointment of Barbra Gonyora, the surviving spouse, as Executor Dative to the
estate late Muchineripi Rushoni Gonyora DRH1989/02 DR1854/05 on 19 October 2002
be and is hereby declared as valid.
3. The
fees of the 2nd respondent for administering the estate shall be
paid by the estate up to the date that the 2nd respondent was served
with this application in case no. 556/05 ….,.
4. The
2nd 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.
5. The
costs in case no.5567/05 and HC221/06 including the costs of hearing the
urgent chamber application on 25 January 2006 shall be borne by the estate late
Muchineripi Gonyora.”
The
first respondent, Kenias Mutyasira, was aggrieved by the nullification of his
appointment as executor dative of the estate late Muchineripi Rishoni Gonyora
(the estate) and appealed to the Supreme Court. It is important to note that
the appeal only related to parts of KUDYA J's order not the whole judgement and
that there was no cross-appeal from the applicant. The appeal was dealt
with by SANDURA JA in the matter Mutyasira v
Gonyora & Anor 2007 (1) ZLR 318.
The
appeal was dismissed in its entirety thus confirming KUDYA J's order.
After
the dismissal of the appeal, the first respondent then sought to be paid fees
due to him as per paragraph 3 of KUDYA J's order. The applicant and the first
respondent were unable to agree on the amount due to the first
respondent. The Master of the High Court was unable to resolve the dispute
and he referred it to a Judge in terms of Order 38 Rule 313 of the High court
Rules 1971 as the Master of the High Court had taxed the fees/costs. The
matter was dealt with by my brother CHITAKUNYE J in the case of Mutyasira v Gonyora 2010 (1) ZLR
489 (H). It is important to emphasise that the dispute between the
applicant and the first respondent in this matter dealt with by CHITAKUNYE J
was not whether the first respondent is owed some fees or not. The dispute
was the currency in which the fees incurred in 2005 should be paid, that is
whether in Zimbabwean dollars or in United States dollars as per the Master of
the High Court's taxed bill. It was ordered…, as follows;
“Claimant
(1st respondent in casu) 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.”
The first
respondent's woes were far from over.
The
applicant seemed unwilling to comply with CHITAKUNYE J's order and did not pay
the first respondent. Instead, the first respondent instituted a fresh
action in the case Kenias Mutysira v
Estate Muchineripi Rishoni Gonyora
(represented by Babra Gonyora in her capacity as the Executrix Dative) and the
Master N.O. HH343-12. The first respondent claimed payment of US$160,788=98
plus interest which was the fees assessed as due by the Master of the High
Court. The action was vigorously defended by the applicant and a
protracted trial ensued before my brother UCHENA J. What is important to note
is that in this action the applicant was not disputing indebtedness in the
amount claimed but raised the defence of set off and other technical
issues. The applicant's defence was that the first respondent's debt had
been extinguished by set-off as the first respondent had sold Stand No.462
Prospect, Waterfalls, Harare for Zimbabwe $3,500,000= currently valued at $250,000=
and took the money hence his claim of fees in the sum of US$160,788=98 plus
interest was extinguished. In addition to that, the applicant also alleged
that the first respondent had sold some shares belonging to the estate and got
his fees. The court, after a full trial, did not find favour with the
applicant's case and UCHENA J granted the following order;
“In the
result, the plaintiff's claim succeeds. It is therefore ordered as
follows;
1. The
first defendant is ordered to pay the plaintiff the sum of US$160,788=98; plus
2.
Interest at prescribed rate from date of summons to the date of payment in full;
and
3. Costs
of suit.”
The
applicant did not comply with UCHENA J's order and instead appealed to the
Supreme Court in case no.SC315/12. The appeal was out of time hence the
applicant also filed before the same court an application for condonation of
late noting of the appeal. This meant that the first respondent could not
enforce UCHENA J's order. However, despite noting the appeal the applicant
proceeded to have the Interim Liquidation and Distribution Account approved by
the Master of the High Court which account excluded the first respondent'
claim. In fact, the applicant proceeded, after such approval, to
distribute estate shares to various beneficiaries without paying the amount due
to the first respondent. On 5 February 2013, the applicant withdrew the
application for condonation of late noting of appeal, which, in essence, meant
there was no longer a valid appeal.
The
first respondent believed he was now at liberty to enforce the judgement by
UCHENA J and proceeded to issue a writ of execution for attachment, removal and
sale of estate shares in some companies. It is at this stage that the
first respondent discovered that the applicant had distributed some shares when
she was well aware that she had noted an appeal to the Supreme Court against
UCHENA J's judgement which she had not complied with. This prompted the first
respondent to protest to the Master of the High Court, who, on 8 October 2012,
reversed the approval/confirmation of the first Interim Liquidation and Distribution
Account. When the applicant was advised of the Master of the High Court's
decision, the first respondent alleged she sought the intervention of the
Minister of Defence, who, as per Annexure 'P' on page 39 in HC135/13 wrote a
letter to the Master of the High Court dated 15 October 2012 asking the Master
of the High Court to explain his decision. The Master of the High Court's
response, Annexure 'Q' in HC1351/13, dated 17th October, proffers no
clear solution. This prompted the first respondent to approach this court
on an urgent basis in HC1357/13 (now before me) seeking a provisional order
interdicting the applicant and other beneficiaries from disposing of shares
transferred to them from the estate by the applicant. On 25 February 2013,
my brother CHITAKUNYE J granted, by consent, interim relief.
It
is the terms of this final order arising from these proceedings which the
applicant is opposing in one of the matters now before me which relief I have
already alluded to.
Despite
the fact that the provisional order in HC1351/13 was granted by consent, the
applicant indicated that she would oppose the confirmation of the final order.
All attempts by the first respondent, as per Annexure 'A' page 120 in HC1351/13,
a letter dated 26 February 2013, could not persuade the applicant
otherwise. The first respondent reasoned that the applicant's position was
untenable as the matter has been dragging on for a decade at a great expense to
the estate in legal fees and that the first respondent's debt remained unpaid
and accruing interest as per UCHENA J's order. The first respondent, as per
that letter, offered to forgo all the interest and agree to payment of US$150,000=
which is much less than the amount US$160,788=98 plus interest granted by
UCHENA J. The response from the applicant's legal practitioners was that
the offer was being considered.
There
was no favourable response communicated to the first respondent. Instead, the
applicant filed another court application, HC2770/13, on 9 April 2013 (one of
the matters now before me), seeking the declaratory relief I have already
alluded to. As per her founding affidavit, the applicant was now singing a
different tune. The basis of the new court application is captured in paragraph
10 of the applicant's founding affidavit in which she said;
“10.11
The court a quo, however, having found the first
respondent's appointment to be null and void and having confirmed my
appointment as valid (i.e. that I was never lawfully removed from the office of
executrix dative) curiously proceeded to award the first respondent fees for
“professional service rendered” arising from a void appointment.”
It
is my respectful view that this is an attack directed at my brother KUDYA J's
judgement when the applicant did not appeal against those findings she deemed
improperly made….,.
A
similar view is taken in respect of the judgement granted by UCHENA J, after
trial, and by CHITAKUNYE J, after referral by the Master of the High Court,
which judgements I have already dealt with.
Again,
the applicant merely attacks these judgments in the court application when no
appeal was made by her in respect of these judgements or orders. In fact,
my brother CHITAKUNYE J, in the case Mutyasira v
Gonyora 2010 (1) ZLR 489 (H) is accused
of having approved fees calculated using the wrong tariff. It is important
to note that when the matter was referred to CHITAKUNYE J by the Master of the
High Court he asked for all parties involved to file heads of argument. The
applicant did not raise the issue of 'wrong tariff' but argued that payment
should be in Zimbabwe dollars!
After
laying out the history of these two matters, or rather the dispute between the
parties, I now turn to the question both parties agreed is the relevant
question – the question being whether the
first respondent, Kennias Mutyasira, is entitled to the fees claimed or not.
I
should confess that it was extremely difficult to appreciate counsel for the
applicant's submissions.
Counsel for the applicant submitted that the starting point is the Supreme
Court judgement by SANDURA JA 2007 (1) ZLR 318 in which the decision by KUDYA J
that the appointment of the first respondent as the executor was incompetent
was upheld. Counsel for the applicant further submitted that act of taxing a
bill of costs or fees was not valid or sustainable at law. He submitted that it
is void.
The
seemingly simple but illogical argument advanced by the applicant is that no
fees are due to the first respondent on the basis that his appointment was held
to be invalid and set aside. Counsel for the applicant relied on the case of Geddes v Tawonezvi 2002 (1) ZLR 479 (S) in
which MALABA JA…, dealt with a labour dispute in which the High Court set aside
misconduct proceedings and the determination made on account that was the proceedings
were instituted by an incompetent person. Counsel for the applicant referred and relied on the dicta at page 487 in which MALABA JA quotes SANDURA JA in Mugwebe v Seed Co Ltd and Anor
2000 (1) ZLR 93 (S)…, in which reference is made to one of the famous words by
LORD DENNING in MacFoy v United Africa Co Ltd (1961) 3 A11 ER 1169 (PC)…,;
“The
question which now arises is whether the appellant's suspension was valid.
There is no doubt in my mind, whatsoever, that it is null and void. It was a
complete nullity. In this respect, I can do no better than quote what LORD
DENNING said in MacFoy v United Africa Co Ltd (1961) 3 A11 ER 1169 (PC) at
11721;
'If
an act is void then it is, in law a nullity. It is not only bad but incurably
bad. There is no need for an order of the court to set it aside. It is
automatically null and void without more ado, though it is sometimes convenient
to have the court declare it to be so. And every proceeding which is founded on
it is also bad and incurably bad. You cannot put something on nothing and
expect it to stay there. It will collapse.'”
I
do not believe that there can be an argument arising from LORD DENNING's wise
words on that relevant aspect of the law. The issue, however, is whether this
legal principle is being properly applied on the facts of the case.
I
do not believe so.
It
is not in issue that the first respondent's appointment as executor was
declared void and invalid by KUDYA J, a decision upheld by the Supreme Court.
The applicant's argument is that anything else which the first respondent did
is a nullity and that the applicant is merely seeking an order to so declare as
a formality. It is on that basis that the applicant argues that the first
respondent cannot be entitled to any fees at all as, in the eyes of the law, he
was never a curator or an executor or was he entitled to claim fees using the
scale or tariffs used by executors. This submission by the applicant ignores
KUDYA J's judgement, which is extant, in which in paragraph 3 of the order
stated it was specifically stated that despite the setting aside of his
appointment as an executor, the first respondent is entitled to a fee. The same
can be said of the judgements by CHITAKUNYE J, which specified the currency in which
the fees are to be paid, and UCHENA J's judgement, which specified the amount
to be paid. The correctness or otherwise of these judgements is not for this
court to decide. They all remain valid and binding unless and until set aside
by a competent court. It would be incorrect and disingenuous for the applicant
to argue that all these proceedings are a nullity. This probably explains the
difficulty counsel for the applicant had when the court inquired from him
whether his view was that the first respondent is not entitled to any fees in view
of KUDYA J's order. He conceded, grudgingly, that the first respondent may be
entitled to a fee but not based on the tariff used by executors. In a bid to
salvage the applicant's case, it was submitted that the first respondent is
entitled to be paid for services rendered. However, the applicant remained
adamant that the fee cannot be competently paid as the taxed bill of costs is
on the basis of the tariff used by executors when, in fact first, the
respondent's appointment was nullified.
I
am not persuaded by the first applicant's submissions in this regard. KUDYA J,
in his judgement, clearly grappled with the question of whether the first
respondent should be paid for services that he rendered because his appointment
was void. See page 4 of the cyclostyled judgement. Let me refer to what the
learned Judge said at page 8 of the cyclostyled judgement;
“Mr
Chikumbirike also submitted in his oral submissions, even though it was not
part of his draft order in both applications, that the court makes an order
denying the second respondent of any fees due to him for work he has done on
the basis that his appointment was void. That submission exercised my mind.
It seems to me that the second respondent did not solicit appointment. He was
appointed by the Master, who, from the zeal with which he submitted his reports,
appears to have sincerely believed that his actions were in accordance with the
law. It seems to me that the only fair order to make will be to allow the
second respondent to obtain his costs up to the date that he was served with
the application in case number 55677/05. On that date, he became aware of the
stance taken by the applicant in these proceedings. He, however, proceeded to
act. He did so to his peril as he had prior notice that he should stop. He
should, in my view, have proceeded with caution thereafter. I was not able to
determine from the records before me the date on which he was served, but I am
sure it is a date which can be easily ascertained, even if it is not mentioned
in the order.”…,.
It
is this lucid reasoning by KUDYA J which informed paragraph 3 of the order he
granted. The deatils of how much is due and in what currency were later dealt
with in subsequent proceedings I have referred to.
The
order by KUDYA J was appealed against by the first respondent. Paragraph 3 of
that order was in the first respondent's favour as it was an order against the
estate, represented by the applicant, to pay fees to the first respondent
despite the invalidation of his appointment. If the applicant did not agree
with this finding one would have expected the applicant to appeal. However, the
applicant did not cross appeal against any part of KUDYA J's order - let alone
paragraph 3. It logically follows that the issue as to whether the first
respondent should be paid fees or not was therefore not before the Supreme
Court. It was not dealt with. This means that the order granted by KUDYA J, in
its entirety, inclusive of paragraph 3, is valid. The reasons for granting the
order in paragraph 3 were given. It is based on the principle of fairness and
equity. It matters not if the applicant agreed or not with this. If aggrieved,
the proper course of action to take was to cross-appeal.
It
is clear that based on KUDYA J's judgement, paragraph 3 of the order, the first
respondent proceeded to issue summons out of this court against the applicant
based now on a taxed bill in the matter dealt with by UCHENA J. It is
surprising why the applicant, if she was aware of the voidness of KUDYA J's
order in paragraph 3, did not raise it as part of her defence. Instead, the
applicant raised other technicalities and the defence of set off thus
acknowledging indebtedness and the validity of KUDYA J's order. Similarly, the
applicant did not raise the issue of voidness before CHITAKUNYE J who
specifically dealt with the taxed bill of costs….,.
I
do not share the view that paragraph 3 of KUDYA J's order can be pronounced by
this court as void abinitio. The simple fact is
that the judgements of this court are not reversible by the same court but
appeable. The indebtedness of the applicant to the first respondent in the
amount later granted by UCHENA J is clear. The machinations and legal gymnastics
by the applicant are futile and inconsequential.
The
applicant should simply comply with the court orders and pay what is clearly
due to the first respondent….,.
In
the result, I make the following order;
1.
The applicant's claim in case no. HC2770/13 be and is hereby dismissed.
2.
Judgement be and is hereby entered in favour of the respondent, Kenias
Mutyasira, being the applicant in case HC1351/13 as follows;
2.1.
The approval, on 2 October 2012, of the Interim Administration and Distribution
Account in estate late Muchineripi Rishoni Gonyora be and is hereby declared
null and void.
2.2.
The transfer of the shares done by the applicant, Barbra Gonyora N.O., being
the first respondent in HC1351/13 and facilitated by the Master and the Registrar
of Companies be and is hereby set aside.
