This is an urgent chamber application wherein the applicant
claims, in the interim, the following relief:
“Pending confirmation or discharge of the provisional
order:-
(i) Second respondent be and is hereby interdicted from
issuing first respondent the requisite consent for disposal of the assets of
the Estate Late Fairchild Maplanka, DRB 334/09.
(ii) Should the second respondent have issued the consent
in (i) above at the time this order is made, second respondent be and is hereby
ordered to revoke it.
(iii) First respondent be and is hereby interdicted from
disposing of the assets of the late Fairchild Maplanka DRB 334/09, with or
without the consent of the second respondent.
(iv) The certificate of authority issued by the 2nd
respondent in the Estate Late Fairchild Maplanka, DRB 334/09, on the 16th of
October 2015, be and is hereby suspended.”
The facts are as outlined hereunder.
The applicant is one of the late Fairchild Maplanka's sons.
The first respondent is the Executor of the Estate Late F. Maplanka appointed
thereto by the second respondent. During his lifetime, the late Mr F. Maplanka
was married to three wives. Evelyn Maplanka, the first wife, was the
applicant's mother. Upon the death of Mr Maplanka, one Nomsa Hazel Ncube was
appointed the Executor of the estate. The finalisation of the distribution of
the estate stalled and in July 2015, the second respondent relieved Nomsa Hazel
Ncube of her executorship. The first respondent was subsequently appointed as
the Executor the of applicant's late father's estate. This was on the 6th
day of August 2015.
Evelyn Maplanka passed on the 21st of August
2015.
On 1 September 2015, the applicant's legal practitioners
wrote to the second respondent complaining about the first respondent's
conduct. See annexure 'D'. Further, on 2 September 2015, the applicant's legal
practitioners wrote a letter to the first respondent complaining that he was
not a neutral executor. See annexure E
and F, the latter being the first respondent's reply. Meanwhile, on 9 September
2015, Messrs Lazarus and Sarif wrote a letter to the second respondent in which
they reiterated that they intended to challenge the removal of Nomsa Ncube as
the Executor. The first respondent sought from the second respondent authority,
in terms of section 120 of the Administration of Estates Act [Chapter 6:01]
Amendment Number 6/97, to dispose certain movable and immovable properties
belonging to the estate. While the
request was made on 20 October 2015, the applicant became aware of its
existence on 3 November 2015. The applicant's legal practitioners then
addressed a letter to the second respondent on 4 November 2015 asking him to
register the applicant's mother's estate. The estate was subsequently
registered under DRB 898/15 but no Executor has been appointed.
Despite this, the first respondent insists on selling the
assets of the Estate Late F. Maplanka, DRB 334/09, in clear disregard of the
applicant's mother's interests.
In terms of section 219 of the Administration of Estates
Act [Chapter 6:01], the applicant, as the son to his deceased mother, is
entitled to secure and take custody of the assets of his mother - including
assets left by his mother in his father's estate.
The applicant challenges the first respondent's
“Distribution Plan” as indicated in Annexure H.
In his founding affidavit, the applicant averred that this
matter is urgent in that if the second respondent issues the consent applied
for, the estate of his mother will be prejudiced to an extent that such
prejudice will be irreparable. On the other hand, the first respondent will not
be prejudiced by the order he seeks in that;
(i) Firstly, it is an interim interdict pending the
appointment of an Executor in his mother's estate; and
(ii) Secondly, the first respondent is only acting in his
official capacity in that the property does not personally belong to him.
Therefore, the balance of convenience favours the granting
of the interdict so as to afford all concerned persons, including the
applicant's mother's estate through its Executor, an opportunity to make
representations as to how the estate of the applicant's father should be dealt
with.
Further, as regards urgency, the applicant has contended
that he approached this court as soon as he had knowledge of the intended
disposal of his late father's assets. The applicant submitted that although he
conducts his business in Victoria Falls, most of the time he will be out of
reach and this is why his legal practitioner could not reach him by telephone
timeously.
The application was opposed by both respondents. The first
respondent's grounds for opposing the application, as contained in his opposing
affidavit, are briefly that:
(i) The matter is not urgent as the estate of Evelyn
Maplanka will be treated like any other beneficiary in terms of section 52 of
the Administration of Estates Act.
(ii) Since the second respondent has already issued the
requisite consent to sell, the order sought is incompetent. In any case, the
estate of the applicant's mother cannot suffer any prejudice as it “will be
awarded what is due to it in terms of the law” in due course.
(iii) In terms of section 5(1) of the Act, the estate of
the applicant's mother ought to have been registered “within 14 days” of her
death. She died on 21st August 2015 and it 'boggles the mind how
non-appointment of an executor 12 weeks later creates urgency.'
(iv) The applicant has no locus standi to represent his
deceased mother as he was not appointed Executor of that estate.
On the merits, the first respondent argued that:
(i) There is no distribution plan but just a draft which
was not signed by all the beneficiaries.
(ii) In terms of section 25(3) of the Act, the Master
appoints such person or persons as to him seems fit and proper to be executor
or executors of the estate…,…
(iii) There is no basis for the allegation of bias.
(iv) It is not the first respondent's fault that an Executor
is yet to be appointed for the applicant's mother's estate and this omission
cannot validly stop the first respondent from administering the estate under
his administration.
(v) The applicant's mother's interest in the estate under
the first respondent's administration is secure.
(vi) The applicant, and other beneficiaries, connived with
the former Executor to sell estate property comprising cattle and immovable property
illegally.
(vii) The applicant has “so many other remedies” available
to him….,.
The sole issue for determination is whether or not the
applicant has met the requisites for an interim interdict.
An application for an interdict can only be granted if all
the requisites of a prohibitory interdict are established. The locus classicus
of the cases which set out these criteria is Setlogelo v Setlogelo 1914 AD 221…,.
In Tribal (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52, these criteria
were stated as:
“1. A clear or definite right – this is a matter of
substantive law;
2. An injury actually committed or reasonably apprehended –
an infringement of the right established and resultant prejudice.
3. The absence of a similar protection by any other
ordinary remedy. The alternative remedy must;
(a) Be adequate in the circumstances;
(b) Be ordinary and reasonable;
(c ) Be a legal remedy; and
(d) Grant similar protection.”
See also PTC Pension Fund v Standard Chartered Merchant
Bank Zimbabwe Ltd and Anor 1993 (1) ZLR 55 (H)…,.
In Econet (Pvt) Ltd v Min of Information, Posts &
Telecommunications 1997 (1) ZLR 342 (H), it was held, per ADAM J, that for the
grant of a temporary or interim interdict, the requisites are that –
“(1) The right sought to be protected is clear; or
(2)(a) If it is not clear, it is prima facie established,
even though open to doubt; and
(b) There is a well grounded apprehension of irreparable
harm if the relief is not granted and the applicant ultimately succeeds in establishing
his right;
(3) The balance of
convenience favours the grant of the relief; and
(4) There be no other satisfactory remedy.”
See also Nyambi & Ors v Minister of Local Government
& Anor 2012 (1) ZLR 569 (H).
C. B. PREST, The Law & Practice of Interdicts….,
states;
“The court has to decide, in its discretion, whether or not
to grant a temporary interdict. In the exercise of this discretion, it must be
satisfied that the applicant has proved an actual or well grounded apprehension
of irreparable loss if no interdict is granted and it must have regard to the
balance of convenience. The balance of convenience, however, becomes relevant
only when a prima facie ground for an interdict has been established.
This is the threshold that must be crossed and a failure so
to do means that an applicant cannot succeed in his claim.”
Put differently, where an applicant for an interdict proves
a clear right, then, he need not show that he will suffer irreparable harm if
the interdict is not granted. He merely has to show that an injury has been
committed or that there is a reasonable apprehension that an injury will be
committed.
Applying these principles to the case in casu, I find that
the applicant has a prima facie right arising from the fact that he is Evelyn
Maplanka's son and that his mother had left property in expectancy in the
estate of his late father. Section 21 of the Administration of Estates Act [Chapter
6:01] requires him to take custody of assets of a deceased person in his
mother's position.
As regards irreparable harm, it is common cause that the
first respondent wants to sell the immovable property in order to take care of
liabilities before the appointment of an Executor in Evelyn Maplanka's estate
under DRB 898/15. Quite clearly, the letter dated 20 October 2015, Annexure H,
violates the rights of the Estate Late Evelyn Maplanka. If this sale is
permitted, the applicant will suffer financial prejudice in that in the absence
of an Executor in Evelyn Maplanka's estate, there is virtually no one to
represent its interests.
In my view, the balance of convenience favours the granting
of the interdict in that the first respondent will lose nothing if the order is
granted since he is acting in his official capacity. All that is requested of
him is that he acts fairly by consulting all beneficiaries before taking
decisions that have far-reaching consequences. In other words, the first
respondent's discretionary powers in terms of section 68 of the Administration
of Estates Act [Chapter 6:01] are not unfettered as the second respondent
ultimately makes decisions.
On the other hand, if the assets are disposed without
granting the estate the right to be heard, this will obviously cause prejudice
to Evelyn Maplanka's estate, and, ultimately, to the applicant. The first
respondent has made it abundantly clear that he intends to distribute the
proceeds of the sale to “other beneficiaries” - excluding Evelyn Maplanka's
children, including the applicant.
The second respondent had also taken the same stance….,.
The applicant has no satisfactory alternative remedy other
than to apply for the interdict.
It was submitted by counsel for the first respondent that
the applicant has numerous other remedies in terms of section 52 of the
Administration of Estates Act [Chapter 6:01] in that whoever is eventually
appointed as Executor in Evelyn Maplanka's estate will have an opportunity to
challenge the sale ex post facto.
In my view, this is without merit as it amounts to closing
the stable door when the horse has already bolted….,.
For these reasons, I am of the view that the respondents'
opposition is without merit. The applicant has made a good case for an
interdict. Accordingly, it is ordered that:
Pending confirmation or discharge of the provisional order
-
(i) Second respondent be and is hereby interdicted from
issuing 1st respondent the requisite consent for disposal of the
assets of the estate late Fairchild Maplanka, DRB 34/09.
(ii) Should the 2nd respondent have issued the
consent in (i) above at the time this order is made, 2nd respondent
be and is hereby ordered to revoke it.
(iii) 1st respondent be and is hereby
interdicted from disposing of the assets of the late Fairchild Maplanka DRB
334/09 with or without the consent of the 2nd respondent.
(iv) The certificate of authority issued by the 2nd
respondent to sell, by private treaty, immovable property described in Annexure
I, belonging to Estate Late Fairchild Maplanka DRB 334/09, be and is hereby
suspended.
(v) This provisional order, together with the
urgent chamber application, shall be served upon the 1st and 2nd
respondents by the applicant's legal practitioners by a certificate of service.
