CHITAKUNYE
J:
This
is an application for a declaratory order to the effect that the
applicant is entitled to two quarters of a third of the net estate of
the late Existo Francis Hapaguti.
It
is duly opposed.
The
applicant is a surviving spouse of the Late Existo Francis Hapaguti
who died on 10 April 2009 in the United Kingdom.
The
1st
respondent is the Executor Dative in the Estate late Existo Francis
Hapaguti. The second respondent is cited in his official capacity.
Facts
giving rise to this case were that in 1993 the late Existo Francis
Hapaguti (hereinafter referred to as the late Existo) entered into a
customary law marriage with Runyararo Violet Kadzunge; in 1995 he
entered into another customary law union with applicant and later he
married Charity Paradza under customary law. The marriages were
unregistered.
Later
applicant and late Existo went to live in the United Kingdom whilst
the other two wives remained in Zimbabwe. Whilst in the United
Kingdom applicant and the late Existo had their marriage solemnised
in terms of Marriage Act 1949 on 17 May 2003. It thus became a
monogamous marriage. The late Existo had apparently been issued with
a 'Non-Marriage certificate' by the Registrar General of
Marriages. It was on the basis of that certificate that he was able
to have his marriage to applicant solemnised in terms of the
Marriages Act, 1949.
At
the time of his demise the late Existo owned immovable and movable
assets in both Zimbabwe and the United Kingdom. The late Existo
Hapaguti was survived by 11 children and three wives. Three of the
children were with applicant.
The
late Existo was laid to rest in Zimbabwe and subsequently his estate
was registered under DR 401/09. The first respondent was duly
appointed Executor Dative of the estate late Existo Francis Hapaguti.
As
the late Existo was already married to two other women when he
purported to enter into a monogamous marriage with applicant, it
follows that in terms of the proviso to s68 (4) of the Administration
of Estates Act, the applicant was deemed to have been married in
terms customary law. That subsection states that:-
“A
marriage contracted according to the Marriages Act [Chapter 5:11] or
the law of a foreign country under which persons are not permitted to
have more than one spouse shall be regarded as a valid marriage for
the purposes of this Part even if, when it was contracted, either of
the parties was married to someone else in accordance with customary
law, whether or not that customary law marriage was solemnised in
terms of the Customary Marriages Act [chapter 5:07];
Provided
that, for the purposes of this Part, the first mentioned marriage
shall be regarded as a customary- law marriage.” (emphasis
is mine)
From
the given dates of marriages, the applicant is the second wife as she
married late Existo in 1995. Runyararo Violet Kadzunge is the
first/senior wife having married the late Existo in 1993.
As
the applicant is ordinarily resident in the UK she appointed her
cousin brother G.M. Chivazve and A. A. Musunga of Musunga and
Associates to be her agents to represent her in the administration of
the estate late Existo. In this regard she signed a General Power of
Attorney appointing the two as her agents. See annexure THC3 dated 30
April 2009. G.M. Chivazve later terminated the services of Mr.
Musunga and for all intents and purposes remained as the sole agent.
The
first respondent proceeded with the administration of the estate in
terms of the relevant provisions of the law and on 7 December 2009
produced the first Interim Administration and Distribution account
(the inheritance plan (Annexure C)). The account was duly advertised
and no objection was raised hence it was confirmed by second
respondent on 12 February 2010 in terms of ss 68 D and 68 E of the
Administration of Estates Act [Cap
6:01].
That
inheritance plan outlined the late Existo's assets and how they
were to be distributed to the beneficiaries. The plan also explains
why some assets were outstanding and that those issues were still to
be resolved by the executor.
In
terms of annexure C the applicant's entitlement in the estate is
governed by s68F(2)(b)(1) of the Act. That subsection section
provides that:-
“(b)
Where the deceased person was a man and is survived by two or more
wives and had one or more children -
(1)
One third of the net estate should be divided between the surviving
wives in the proportions two shares to the first or senior wife and
one share to the other wife or each of the wives as the case maybe.”
Annexure
C further states that the other wives were considered and that
provisions of s68F(2)(c) relevant to immovable assets and the
respective household goods was taken into account.
It
is in these circumstances that on 15 June 2012 the applicant filed
this application for a declaratur.
The
application is opposed. In his opposition the first respondent raised
some points in
limine.
After
a careful perusal of the application I was of the view that a
resolution of the points in
limine
will decide the matter.
The
first respondent raised issues of this court's jurisdiction; the
fact that though the application has been brought as an application
for a declaratur, applicant is in fact, asking this court to review
decisions made by the Master; as the inheritance plan was confirmed
assets distributed to beneficiaries, beneficiaries should have been
cited, their non-joinder is fatal; the application is an academic
exercise to the extent that the assets which are the subject of the
relief sought have been passed from the estate and lastly, that the
applicant is bound by the actions of her lawfully appointed agent.
Jurisdiction
The
first respondent contended that by asking court to declare what she
is entitled to and to what extent, applicant is asking court to usurp
the jurisdiction vested in an administrative body and declare her as
the first wife or the extent of her inheritance.
The
applicant on the other hand contended that she is only seeking a
declaratory and not to interfere with the Master's jurisdiction.
A
careful analysis of the applicant's case shows that she is in fact
intent on this court making a decision on what has already been made
by the Master. For instance the issue of ranking of wives is within
the functions of the Master upon being presented with evidence. What
share a surviving wife inherits is dependent on that ranking. Section
68F(2)(b) of the Act is very clear on how the Master has to proceed
in this regard. I am of the view that this court cannot determine
the issue of ranking of wives at first instance as that has already
been done. If it is that applicant is not satisfied with the Master's
decision the recourse is not to ask this court to make a fresh
determination as if at first instance. There are procedures for
review and appeal available to a dissatisfied beneficiary which
applicant could have resorted to. Section 68J states that:-
“Any
person who is aggrieved by any decision of the Master in terms of
this Part may appeal against the decision to the High Court within
the time and the manner prescribed in rules of court.”
In
casu,
on 17 August 2009 the Master made a decision that the marriage of
applicant to the late Existo did not nullify the other marriages and
so the estate has to fall under customary estates. Upon the executor
preparing the inheritance plan as per guidance from the Master, he
prepared an inheritance plan and submitted it to the Master for
approval.
In
this regard s68E(3)(a) of the Act states that:-
“If
the Master is satisfied that a plan submitted to him in terms of
subsection(1) has been agreed to by all the beneficiaries concerned
or by such of them as the executor could with reasonable diligence
have consulted, the Master shall approve the plan and authorise the
executor to distribute or administer the estate in accordance with
it.”
This
the Master did as confirmed by the approval of the plan on 12
February 2010.
These
decisions by the Master were important and cannot be ignored as they
determined the next step to be taken by the executor and
beneficiaries. It is my view that in as far as applicant did not
challenge these decisions by the Master she cannot seek to undo those
decisions through the back door under the pretext of seeking only a
declaratory order.
Nature
of the Application
The
first respondent argued that though the application has been brought
as an application for a declaratory order it is in fact an
application for review. The applicant disputed that and contended
that this is purely for a declaratory order.
In
their submissions counsel alluded to what would constitute an
application for a declaratur and an application for review. There was
not much of a dispute that court has to look at the grounds of the
application to ascertain the true nature of the application.
In
Geddes
Ltd v
Tawonezvi
2002 (1) ZLR 479 (S) court held that:-
“In
deciding whether an application is for a declaration or review, the
court has to look at the grounds of the application and the evidence
produced in support of them. The fact that an application seeks a
declaratory relief is not itself proof that the application is not
for review. The court should look at the grounds on which the
application is based, rather than the order sought…”
In
Musara
v
Zinatha
1992 (1) ZLR 9 at p14 ROBINSON J had this to say on the same
subject:-
“At
the outset I would observe that the bulk of the petitioner's
petition raises matters, such as malice, gross irrationality, the
application of the audi
alteram partem
principle and bias, which relate to the subject of review and which
would only render the act in question voidable and not void.
Consequently, those issues are not properly before this court in the
present application which seeks a declaratory order specifically and
exclusively on the ground that the petitioner's purported
suspension is null and void. Fortunately for the petitioner, there is
just sufficient information on the papers to enable the court to
consider the petition as one seeking a declaratory order in regard to
the petitioner's suspension - had there not been such information
so that the petition amounted to a review simpliciter,…..
then I would have dismissed the petition on the ground that it was
out of time as a review matter and that no cause had been shown on
the papers for the court, in terms Rule 259 of the Rules of court, to
extend the prescribed eight week period within which a review is to
be instituted.”
See
also Kenias
Mutyasira v
Barbra Gonyora and Master of the High Court
SC 80/06.
Further,
s27 (1) of the High Court Act, [Cap
7:06]
outlines the grounds for review as follows: -
“(1)
Subject to this Act and any other law, the grounds on which any
proceedings or decision may be brought on review before the High
Court shall be -
(a)
Absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case maybe;
(c)
Gross irregularity in the proceedings or the decision.”
In
his submissions counsel for applicant argued that the application is
not a review in that the grounds being advanced are nowhere near
those for review. He then attempted to reproduce the grounds as -
“47.
My case is, in terms of the law of Zimbabwe, am I entitled to inherit
my late husband and if so, to what extent?
48.
According to 1st
and 2nd
respondents, all I am entitled to is my husband's 50% share in our
matrimonial home.
49.
My interpretation of the applicable laws is clearly expressed in
annexures 'D' and 'G'.”
It
was from these grounds that she is asking court to declare her
entitlement.
A
perusal of the applicant's founding affidavit shows that the above
is an understatement of the actual grounds that she has put forth as
the basis for seeking this courts interference. It is clear that the
application is premised on applicant's dissatisfaction from the
manner in which the late Existo's estate was administered and the
decisions made by the Master in the process. Applicant alleges that:-
1st
respondent was obviously too biased and personally interested in the
estate and that the second respondent through an Assistant Master was
biased and she felt she could not get justice.
In
fact in para 46 of her founding affidavit applicant states that:
'this
is not an application for review but the palpably unfair treatment I
got in Mrs Kashaya's hands cannot be swept under the carpet.'
Clearly
therefore the application is to undo what Mrs. Kashaya (Assistant
Master) did which applicant felt was a biased decision.
Applicant
further alleges that she was not consulted and she did not agree to
the inheritance plan as contemplated by s 68 E (2). She thus raises
the issue of audi
alteram
partem
principle in decision making by an administrative body.
The
tone of applicant's affidavit gives the impression that she is
bitter about such decisions as the acceptance by the Master of the
existence of the two other wives, the approval by the Master of the
inheritance plan and the failure to consult her in the decision
making process. The decision to place her as the second wife and not
the senior wife did not go down well with applicant. This is evident
from her constant reference to herself as the senior wife and hence
entitled to two quarters of a third share yet she is aware the
Master, upon being furnished with information on the other marriages
the late Existo had, ranked her as the second wife.
It
is evident that the core of the applicant's dissatisfaction with
the manner in which the estate late Existo was administered include
allegations of bias, malice, collusion between the Master and the
first respondent and her agent, interests in the cause by the first
and second respondents when the reaching out agreement on the
inheritance plan.
It
is clear to me that applicant is in fact and in truth seeking a
review of the Master's decisions made from the start of the
administration of the estate to the approval of the inheritance plan.
This
is thus misplaced.
The
applicant ought to have made a proper application for review in terms
of the rules or appealed against the Master's decisions. As it is
she is way out of time from the time those decisions were made for
either review or appeal.
It
was also the applicant's argument that she was never consulted in
the process hence the process was flawed.
It
is common cause that the applicant appointed two agents through a
Power of Attorney comprising a legal practitioner and her own cousin
brother. She clothed them with the necessary powers to look after her
interests in the estate. The general power of attorney specifically
states that its effect is to 'ratify, allow and confirm…….all
and whatever my said Attorney, his substitutes, shall lawfully do or
cause to be done by virtue of these presents.'
The
Power of Attorney is quite clear on the extent to which the agents
were expected to do which included to discuss and agree on the
inheritance plan in terms of s68D(2) of the Act. That section
provides that:-
“When
drawing up a plan in terms of subsection (1), an executor shall -
(a)
pay regard to the principles set out in subsection (2) of section
sixty-eight F, to the extent that they are applicable; and
(b)
so far as is practicable, consult the deceased person's family and
the beneficiaries and endeavour to obtain the beneficiaries'
agreement to it.”
In
confirmation of the fact that such consultation took place and an
agreement reached, the applicant's agent Mr. G.M. Chivazve wrote a
letter dated 7 August 2009 addressed to the executor, which letter,
inter
alia,
stated that:-
“In
my representative capacity, and on behalf of my cousin sister Mrs.
Stella Hapaguti, (the widow of the late Mr. Existo Francis Hapaguti),
I acknowledge recent receipt of your letter dated 28 July 2009,
together with one bound volume of the interim Forensic Audit Report,
as well as a copy of the Draft Administration and Distribution
Account thereof.
I
can confirm having had time to peruse both the Report and to analyze
the Draft Administration and Distribution Account, and have found
nothing warranting change or adjustment. In particular, I am happy
that my initial wish as proffered at the preliminary meeting we had
at my office on 28 May 2009, whereby I wished for my cousin sister
Mrs. Hapaguti to exclusively inherit the UK matrimonial home, cars,
furniture and other property there. I am happy that that wish has
largely been adopted and respected.….. l am in accordance thereof
happy for you to send both Report and Draft Administration Account in
their respective formats to the Master of the High Court, in terms of
the Administration of Estates Act (Chapter 6:01), for his further
consideration.”
When
the inheritance plan was advertised applicant's agent had occasion
to examine it and this is what he said in para 2 of his letter of 15
January 2010 to the Executor;
“I
can confirm I did manage to visit the High Court within the
prescribed period and managed to inspect the said First Interim
Administration and Distribution Account and was satisfied beyond
reproach that all was, as far as I was concerned, in order. For the
avoidance of doubt or ambiguity, I can confirm that I do not have any
objections with the Estate Account, nor have I any objections or
reservations with the present Plan of Distribution.”
This
plan of distribution was borne out of a process of consultation and
this is aptly captured in the agent's letter dated 4 March 2010
after the confirmation of the plan wherein in para 4 thereof he said
that:-
“Meanwhile
let me commend you and your team for the objective, non-biased, and
professional manner that you have handled this otherwise complex
estate where nearly everything seemed extra-ordinary, and indeed
“hidden” from the eyes of my sister Mrs. Stella Hapaguti. Thank
you one and all. Yes
we have fought, disagreed, and also quarrelled, but all for the
ultimate
benefit
of all.
I am happy for my sister; my vazukuru, and all the other bona
fide
beneficiaries that include the surviving parents of the late Existo
Francis, (Mr. and Mrs. Mazhindu).” (emphasis is mine)
The
above confirms that there were intense consultations that took place
till the executor and the beneficiaries reached an agreed inheritance
plan. The agent was fully involved in the discussions that took place
and in the eventual agreed plan. His mandate had not been terminated.
From
the applicant's own words she only terminated her cousin brother's
agency on the 14 February 2012 well after the decisions in issue had
been made with the participation of that brother.
It
is therefore not correct to say she was never consulted. The
documents filed of record show clearly that applicant's brother was
consulted in the process and he did agree to the final plan. It is my
view that it was not incumbent upon the executor or the Master to
consult applicant personally when she had appointed an agent for that
purpose. The agent's mandate was adequate for the consultations to
be valid and binding. I am of the view that the agent acted within
his mandate. See Seniors
Service (Pvt) Ltd. v
Nyoni
1986 (2) ZLR 293 (S).
Disinheritance
Another
point worthy noting is the applicant's allegation that she was
disinherited.
The
letters by her agent show that there was no disinheritance but she
was to inherit the UK properties. The inheritance plan shows that
there were some outstanding issues to be dealt with including the UK
properties which were allocated to applicant as her inheritance. That
plan states that:-
“In
this distribution account Mrs. Stellah Hapaguti (nee Chivazve) has
been left out on the understanding that she will inherit the estates
50% share in the property at No. 17 Oakhill, Letchworth Garden City,
Hertfordshire, SG6 2RD in the United Kingdom. In this case the
executor will be appointing an agent to administer the United Kingdom
estate. It should be noted that if the value of assets cars included
exceeds the average share of inheritance, we propose that the excess
be shared among the 14 beneficiaries including Mrs. Stellah
Hapaguti.”
This
is the share applicant was to inherit.
The
applicant seemed to labour under the belief that the UK estate should
not be considered except those items she tendered, that was wrong.
The
executor gave applicant the opportunity to bring to the table the UK
estate in a transparent manner by suggesting that an administrator be
appointed to deal with the UK properties or, at the very least, she
provided proof of the nature and extent of the estate in UK, but as
the executor lamented, applicant has not been cooperative. She would
rather the nature and extent of the estate in UK remained known to
herself only.
In
terms of the Administration of Estates Act, an executor is required
to consider the value of all property, goods and effects, movable and
immovable, of whatever kind belonging to the estate which he has been
appointed to administer. The net estate the executor is to
distribute, in terms of s68F(2)(b) of the Act, is the residue of an
estate remaining after the discharge or settlement of the claims of
creditors, (s68). It is thus the net estate of the entire estate and
not of the estate in Zimbabwe only. It was thus not disinheritance
for applicant to be awarded the UK estate. The misfortune is that the
value of that estate was not known as applicant has not deemed it
necessary to provide the UK estate account and the distribution
account by the relevant authorities in UK.
The
applicant through her agent objected to the appointment of a UK based
agent to administer the UK part of the estate contending that it will
only duplicate efforts and inundate the estate with more expenses.
They suggested concentration be on the Zimbabwe estate. It was in
that light that applicant's agent and other beneficiaries reached
the decision that the applicant inherits the UK estate.
I
am thus of the view that from the above discourse, the application
cannot succeed.
If
for some reason one were to proceed on the merits of the order
sought, I am of the view that such would still not succeed. The
applicant wishes to be declared as being entitled to two quarters of
a third of the net estates yet she is not the senior wife. In her
papers she did not deny the existence of the other women and the
dates of their customary law marriages to the late Existo. Her
contention seemed to be that because the late Existo obtained a
Non-Marriage Certificate, and proceeded to marry her in terms of the
Marriages Act 1949, she should rank first. Unfortunately for her the
ranking of wives is not dependant on the type of marriage but on the
dates of the marriages. In that regard Runyararo Violet Kadzunge's
marriage of 1993 ranks first and so she is the senior wife. As
already alluded to in terms of s68F(2)(b) of the Act, the senior wife
is expected to inherit two shares whilst the junior wives inherit a
share each.
In
casu,
as there were three wives, it means the one third share had to be
divided into four shares. The senior wife Runyararo inheriting two
shares whilst applicant and Charity inherited a share each. Those
shares are of the third of the net value of the entire estate as
defined in section 68 of the Act, and not of a part of the estate.
This would thus include the assets in Zimbabwe and in the United
Kingdom. I must emphasise that the sharing ratio is in terms of
shares.
A
further point to note is that the sharing ratio is not cast in stone
as it is also subject to what the beneficiaries may decide to agree
on.
It
is in that light that the beneficiaries in this estate engaged in
consultations and reached agreement that applicant inherits the
United Kingdom estate as reflected in the inheritance plan.
A
declaratory order as sought by applicant can therefore not be granted
in the circumstances.
Costs
The
applicant asked for costs on a higher scale and so did the first
respondent.
The
first respondent in fact asked for costs de
bonis propriis.
He contended that the applicant and her legal practitioner have taken
an unreasonable stance in refusing to concede at the very least that
actions taken by an agent under a duly executed power of attorney
lawfully bind the principle. He also alluded to the arrogant and
intemperate language used in reference to the respondents.
After
a careful analysis of the submissions I am of the view that the
applicant's language in the application shows an unwarranted level
of intemperance. The serious allegations made against the respondents
were clearly uncalled for. If only applicant and her legal
practitioner had cared to realise the implication of appointing an
agent. In the circumstances first respondent felt duty bound to
respond in a lengthy and at times provide unnecessary detail. This
culminated in too long a response.
In
reading the founding affidavit one got the impression that the
applicant's legal practitioner was oblivious of this court's
warnings on the use of impolite, arrogant and intemperate language in
court documents.
See
Nyandoro
v
Sithole
& Others
1999 (2) ZLR 353.
The
language of abuse and intolerance we subject each other to in our
social interaction should not be brought to the corridors of the
courts. I do hope that the legal practitioner in question will
seriously attend to basics of appropriate language that is respectful
of other court users even when you disagree with them. Failure to
take heed may result in punitive measures against the legal
practitioner. For today I am of the view that costs on a legal
practitioner client scale will suffice.
Accordingly,
the application is hereby dismissed with costs on attorney- client
scale.
Gama
& Partners,
applicant's legal practitioners.
Scanlen
& Holderness,
first respondent's legal practitioners
