GWAUNZA
DCJ:
This
is an appeal against the judgment of the High Court which dismissed
the appellant's application for a declaratory order in terms of
section 14 of the High Court Act [Chapter 7:06] on the basis that the
appellant lacked the requisite locus standi and had no legal right to
protect.
FACTS
The
first respondent is the executor testamentary to the estate late
Sushila Natverial Naik (“Sushila”). The estate, through the
deceased, had a lease agreement which was concluded sometime in 2000,
in terms which it leased Stand number 107 Salisbury Township (herein
after referred to as “the property”) to Gold Pack Investment. The
property was to be used as a flea market for the sale of furniture as
well as office use.
The
property was sold to the third respondent in September 2016.
The
fourth respondent then took over the lease agreement from Gold Pack
Investment as the new lessee.
In
the court a quo the appellant averred that he was a sub-tenant to the
property and that it was in that capacity that he was seeking a
declaratur in terms of section 14 of the High Court Act. The
declaratory order sought was to the effect that the appointment of
the first respondent as executor had no legal effect as he was not
qualified to be appointed as such, much less to be issued with
Letters of Administration in respect of the estate. The appellant
further sought an order directing the fifth respondent to revoke the
Letters of Administration appointing the first respondent as the
executor and declaring the transfer of the property to the third
respondent, to be null and void.
In
support of his quest for the declaratory order the appellant, in the
court a quo, submitted that for one to be appointed executor
testamentary, one had to file an application with the office of the
fifth respondent, while resident in Zimbabwe. Further, that as the
first respondent had not complied with this requirement, it was not
within the fifth respondent's power to appoint him executor in
terms of section 24(2) of the Administration of Estates Act [Chapter
6:01] (“the Act”). The appellant in addition submitted that by
virtue of that section, the first respondent could not validly be
appointed executor testamentary as he had not been to Zimbabwe
subsequent to the registration of the deceased's will.
Consequently,
the appellant submitted, the fifth respondent had no power to
authorize the sale of the property in question to the third
respondent.
As
will become clear later on in this judgment, nothing turns on these
submissions of the appellant, whether true or not.
The
first to third respondents opposed the application and raised two
points in limine;
(i)
The first point related to the appellant's locus standi.
They
queried the capacity in which the appellant, who was neither a
relative of the deceased nor a beneficiary in the estate, was seeking
a declaratory order invalidating the appointment of the executor
testamentary. The respondents argued further that the appellant had
no direct or substantial interest in the order that he sought as he
was an illegal subtenant to the property in question.
They
also averred that the appellant had no right to be on the property
since both the original lease agreement in favour of Gold Pack
Investment and the one in favour of the fourth respondent prohibited
any subletting of the property.
It
was in view of this circumstance that all illegal subtenants,
including the appellant, were duly issued with a notice of intention
to sell the property to the third respondent in November 2015.
(ii)
The respondents asserted as regards the second point in limine, that
the appellant, by filing an application rather than issuing summons
against the respondents, had adopted the wrong procedure.
They
submitted that there were material disputes of fact not capable of
resolution on the papers before the court.
The
respondents further asserted that the application was in effect one
for a review disguised as an application for a declaratur since it
sought to impugn the procedural steps that the fifth respondent took
to appoint the first respondent.
The
second respondent also submitted that despite the first respondent
not being in Zimbabwe, he was nevertheless empowered to act on his
behalf as executor testamentary since the Act conferred power:-
(i)
on the fifth respondent to grant Letters of Administration but not
deliver them until the executor testamentary has accepted domicilium
citandi in Zimbabwe; and
(ii)
on the first respondent as the executor, to appoint through a power
of attorney, another person in Zimbabwe with full power to act for
him.
As
these requirements were fully met, the second respondent submitted,
the sale of the property in question to the third respondent was
valid and binding and the third respondent as the registered owner of
the property had the right to evict anyone from it.
The
court a quo held that the appellant had failed to show that he was an
interested party, a condition precedent to the filing of an
application for a declaratory order in terms of section 14 of the
High Court Act.
It
found that the appellant had no direct or substantial interest in the
administration of the estate of the late Sushila, and therefore
lacked the requisite locus standi to seek the declaratur in question.
The
court found further that the appellant was an illegal subtenant who
had brought the application for a declaratur in order to foil his
threatened eviction from the property.
It
noted in addition, that the appellant was given to abusing court
process and ignoring the directions of the court. Accordingly, the
court a quo dismissed the application with costs on an attorney and
client scale.
Dissatisfied
with the judgment of the court a quo, the appellant filed this appeal
on the following grounds:-
1.
The court a quo erred in law and misdirected itself in holding that
the appellant had no locus standi when the appellant had proven a
direct and substantial interest in the administration of the estate
of Sushila.
2.
The court a quo erred and misdirected itself in awarding costs on an
attorney and client scale against the appellant when the
circumstances of the case did not justify costs that are punitive in
nature.
These
grounds of appeal, I find, aptly capture the issues that arise for
determination in casu. I will consider them seriatim.
1.
Whether or not the appellant had locus standi to file a declaratory
order in respect of the administration of the estate of Sushila
Before
this Court, it was the appellant's contention that the second
respondent illegally represented the estate of the late Sushila and
that accordingly, he illegally sold and transferred the property to
the third respondent. Ultimately, he submitted that the first
respondent's appointment as the executor testamentary of the estate
was a nullity.
He
further contended that he was in peaceful occupation of the property
as a subtenant through the fourth respondent, by virtue of clause 1.2
of the lease agreement.
He
also took the view that his locus standi arose from the fact that any
person aggrieved by the appointment of an executor can approach the
courts for a remedy. He wished for the estate to be lawfully wound
up, a circumstance that in his view, would enable the decision of
whether or not his threatened eviction was lawful.
Counsel
for the third respondent, to the contrary, contended that the
appellant was an illegal subtenant and had no locus standi, nor did
he have any existing, future or contingent right in the estate of the
late Sushila, to protect. He was neither a beneficiary, an heir or a
creditor and accordingly, had no legal entitlement in the
administration of the deceased estate in question. That being the
case, counsel argued, the application fell short of the requirements
of section 14 of the High Court Act.
The
appellant's application for a declaratur in the court a quo was
made in terms of section 14 of the Act which states as follows:-
“The
High Court may, in its discretion at the instance of any interested
person enquire into and determine any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination”.
Implicit
from a reading of the provision is that a declaratur is sought by a
person with an interest in the subject matter of the dispute,
inquiring or seeking a determination of an existing, future or
contingent right.
In
Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S) GUBBAY CJ had
occasion to consider when a declaratur should be granted. The learned
Chief Justice remarked as follows at 72E-F:-
“The
condition precedent to the grant of a declaratory order under section
14 of the High Court of Zimbabwe Act 1981 is that the applicant must
be an 'interested person', in the sense of having a direct and
substantial interest in the subject matter of the suit which could be
prejudicially affected by the judgment of the court.
The
interest must concern an existing, future or contingent right.
The
court will not decide abstract, academic or hypothetical questions
unrelated thereto. But the presence of an actual dispute or
controversy between the parties interested is not a pre-requisite to
the exercise of jurisdiction.”
See
also Family Benefit Friendly Society v Commissioner for Inland
Revenue and Anor 1995 (4) SA 120 (T).
On
the basis of this authority, before a court can exercise its
discretion to grant a declaratur, it must satisfy itself that the
person seeking such relief has a real interest in the matter and that
there is an existing, contingent or future right to protect.
Cilliers
AC, Loots C and Nel HC in their book Herbstein and Van Winsen, The
Civil Practice of the High Courts of South Africa (5th edn, Juta and
Co. Ltd, Cape Town 2009) state as follows in this regard at p1433 to
1434:
“It
is a trite principle of the common law that an applicant seeking a
declaratur must have a direct interest in the right to which the
order will relate. The right must attach to the applicant and not be
a declaration of someone else's right.
It
is essential for a prospective litigant to have the necessary locus
standi in law when commencing proceedings…. This requires that a
litigant should be both endowed with the necessary capacity to sue,
and have a legally recognised interest in the relevant action to seek
relief.”
It
is common cause that the dispute between the parties arises from the
administration of a deceased estate and the property thereunder.
The
condition precedent is therefore that the appellant must be an
interested person in the sense of having direct and substantial
interest in the subject matter of the litigation, in casu, the
property or the administration of the estate as a whole, which
interest could be prejudicially affected by a court's judgment.
The
nature of the right that an applicant for a declaratur seeks to
protect must clearly be articulated. This was stressed in Electrical
Contractors' Association (South Africa) and Another v Building
Industries Federation (South Africa) (2) 1980 (2) SA 516 (T) at
519H-520B in the following words:-
“A
person seeking a declaration of rights must set forth his contention
as to what the alleged right is. (See O'Neill v Kruger's
Executrix and Others) 1906 TS 342 at 344-5; Smit v Roussow and Ors
1913 CPD 436 at 441.).” (emphasis added).
The
appellant contended that the law allows any person aggrieved by the
appointment of an executor to approach courts seeking the
nullification of the appointment. He submitted that as a subtenant at
the property in question he was within his rights to seek
nullification of the first respondent's appointment as the executor
testamentary.
This
he said despite conceding that there was no sub-lease agreement
between him and the fourth respondent.
It
will be recalled that the lease agreement entered into between the
deceased and Gold Pack Investment, was taken over by the fourth
respondent. The appellant took the view that by virtue of clause 1:2
of the lease agreement which stated that the property under lease was
to be used as flea markets, subletting was inferred.
Clause
8 of the agreement however states as follows:-
“The
Lessee shall -
8.2
shall not allow use of the property by any person other than the
Lessee …. ….
8.9
The lessee shall not sub-let the whole or any part of the property
without the written consent of the lessor and if the lessor consents
to the sub-letting of the whole or any part of the property the
Lessee shall remain liable to the Lessor for all its obligations in
terms of this Lease notwithstanding such subletting.”
Clause
8 whose sub-clauses are worded in peremptory terms, clearly forbade
subletting of the property without the written consent of the
landlord, that is, the deceased or her estate initially, and later,
the third respondent.
It
follows that any other clause in the lease agreement that could have
been read and understood to suggest that subletting was permitted had
to be read in conjunction with clause 8 thereof.
The
court finds no merit in the appellant's submissions.
There
clearly is no basis for the submission that the provision in the
agreement allowing the property to be used as a flea market was to be
taken as a circumstance conferring sub-tenant rights onto the
appellant or any other person. Such rights according to the lease
agreement were only to be conferred by the lessee with the written
consent of the owner of the property.
The
appellant conceded that no sub-lease agreement was entered into
between him and the fourth respondent. He did not produce the
lessor's written consent to show that the fourth respondent was
authorized to sublet the property to him. In the absence of this
written consent, I find that the appellant does not have any legal
right, current, contingent or future, to protect in so far as
anything to do with the administration of the estate of the late
Sushila Natverial Naik, is concerned.
He
did not have any interest, much less substantial, in the matter and
was therefore not entitled to the declaratur that he attempted to
secure.
As
section 14 of the High Court Act makes clear, it is not any party
that can seek nullification of an executor's appointment. Rather
only a party that has a real interest in the estate can do so.
Deceased
estates are dealt with in accordance with the laws governing such
matters. There are people or entities that are entitled to benefit
from that estate, be it testate or intestate. These are the ones with
a direct interest in the dissolution of the estate. In stating this,
I am fortified by the decision in Katirawu v Katirawu & Ors 2007
(2) ZLR 64 (H) at 69D-E where MAKARAU JP (as she then was) remarked
that:-
“While
section 117(1) empowers the fifth respondent to approach the court
for the removal of an executor for the listed grounds; in my view,
such a power granted to the fifth respondent was not intended to take
away the right of all those having an interest in the estate from
approaching the court at common law to have the executor removed if
they can establish to the satisfaction of the court that the
continuance in office of the executor does not augur well for the
future welfare of the estate and beneficiaries.” (emphasis added).
The
appellant, not being a beneficiary, heir or creditor in the estate
cannot in my view have an interest or legal right in issues regarding
the dissolution and administration of that estate. A fortiori, the
appellant did not have locus standi to claim the declaratur that he
sought, which in any case did not deal with the rights, existing or
future, that he had or may have had, which he sought to protect.
The
discretion vested in the court in issuing declaratory orders only
relates to substantive, and not illusory, legal rights and
obligations.
The
finding of the court in Durban City Council v Association of Building
Societies 1942 AD 27, to the effect that the interest of a party must
be a real one, not merely abstract intellectual interest is apposite
to the circumstances in casu.
Even
if the appellant had shown a valid sub-lease agreement with the
lessee concerned, it is highly unlikely that he would have had the
locus standi to challenge the appointment of the executor
testamentary in the estate of the owner of the property in question.
That appointment had no direct bearing on his supposed rights as a
subtenant.
Against
this background, the court a quo was in my view correct in finding
that the appellant's intention in futilely seeking the declaratur
in question was to resist eviction or postpone the day of reckoning
in that respect.
He
has, in short, failed to prove a case for interference, by this
Court, of the exercise by the court a quo of its discretion in
refusing to grant such declaratur.
Clearly,
granting the relief that he sought would have been tantamount to the
court sanctioning an illegality. In the result, I find that the first
ground of appeal is devoid of any merit. It is dismissed.
2.
Whether or not costs on an attorney-client scale were justified in
the circumstances
The
appellant correctly contends that courts do not lightly order
punitive costs against a litigant unless it is clear that such
litigant exhibited a lack of seriousness in pursuing his or her case.
He
himself, he contended, was fully genuine in his quest for the
declaratur sought. Accordingly, he charged, the court a quo erred in
ordering punitive costs against him.
Counsel
for the third respondent, to the contrary, submitted that the court a
quo properly exercised its discretion by awarding costs on a higher
scale. This was particularly so in view of the fact that it was not
the first time the court a quo was being called upon to make a
determination on the same facts and between the same parties.
Reference was made to an extant judgment under HH384/17 where CHAREWA
J held that the appellant was not an interested party and had no
locus standi to seek participation in or review of any matter
relating to the administration of the estate of the late Sushila.
It
is settled law that costs are at the discretion of the court. The
award can only be set aside where the discretion was not exercised
judiciously.
It
is also settled that costs on a higher scale are granted in
exceptional circumstances.
The
grounds upon which the court would be justified to make an award for
costs on a legal practitioner and client scale include dishonest or
malicious conduct, and vexatious, reckless or frivolous proceedings
by and on the part of the litigant concerned.
In
justifying the award of costs on a higher scale, the court a quo
reasoned that the appellant not being an interested party in the
administration of the estate had no basis for bringing the
application before the court as he lacked the requisite locus standi
to do so. The court a quo further took the view that the appellant
was clearly abusing court process by frustrating the administration
of the deceased estate. The court also indicated that there was an
extant Magistrates' Court order for the eviction of the fourth
respondent and all those claiming occupation through it, which in
this case included the appellant as a supposed sub-tenant through the
fourth respondent. Another order, still extant, was obtained in the
case of Newton Elliot Dongo v Bobnik Investments (Pvt) Ltd & Anor
HH384/17. In that case, the court dismissed the appellant's urgent
application for a stay of execution related to an order for his
eviction from the same premises.
Mahembe
v Matombo 2003 (1) ZLR 148 (H) where the court made reference to
Rubin L Law of Costs in South Africa Juta & Co (1949) High Court
dismissed the application on the basis of lack of both urgency and
locus standi.
Lastly,
the court found that the appellant was bent on abusing court process
in situations where he ignored directions from the court.
An
abuse of court process attracts punitive costs. This was stated in
Karengwa v Mpofu HB56/15 where it was held that:-
“On
the issue of costs, the court is generally reluctant to award costs
on an attorney and client scale against a self-actor. In exceptional
circumstances, however, where there is a clear abuse of court process
the court is inclined, in such event, to order costs against a
self-actor on a punitive scale. The awarding of costs is at the
discretion of the court.”
On
the basis of this authority and given his conduct as outlined, I find
that the court a quo did not misdirect itself but judiciously
exercised its discretion in ordering costs on a higher scale against
the appellant. Accordingly, I find that the second ground of appeal
is without merit. It is also dismissed. The appeal as a whole lacks
merit and ought to be dismissed.
DISPOSITION
The
appellant failed to establish a basis upon which this Court could
interfere with the court a quo's exercise of its discretion in
refusing to grant the declaratory order sought. He had no locus
standi to seek such declaratur, having failed to prove any interest
in the administration of the estate of the late Sushila nor that he
had any legal right, current, contingent or future, to protect
through the medium of the said declaratur.
Costs
on the higher scale were properly ordered against the appellant,
given his conduct in these proceedings.
In
the result it is ordered as follows:-
“The
appeal be and is hereby dismissed with costs.”
GOWORA
JA: I agree
MAKONI
JA: I agree
G.N
Mlotshwa & Company, 1st and 2nd respondent's legal
practitioners
Gasa,
Nyamadzawo & Associates, 3rd respondent's legal practitioners
C.
Kuhuni Attorneys, 4th respondent's legal practitioners
