Appointment of Executor, Trustee and Curator re: Approach, Scope, Powers and Obligations

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

Appointment of Executor, Trustee and Curator re: Removal , Resignation, Renunciation and Discharge Qua Executor

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

Urgency re: Land Reform, Spoliation or Mandament van Spolie Proceedings and Property Disputes

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Proof of Service, Return of Service, Address and Manner of Service re: Approach

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case.

There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015.

Practicing Certificates and Right of Audience before Courts re: Self Actors and the Presumption of Knowledge of the Law

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i) Firstly, that the application is incurably defective, and so, technically, there was no application before me.

He argued that the application was not in compliance with Rule 241(1) of the High Court Rules 1971. That Rule states that an urgent chamber application shall be in Form 29B and state the grounds for the application....,.

In his first point in limine, counsel for the respondents pointed to the requirements of Rule 241(1) of which the papers before me were not in compliance with. He argued that the defect is such that there is no application before court. As for the fact that the applicants were self-actors and so could not be expected to assiduously adhere to the requirements of the Rule, counsel for the respondents argued that whilst that may have been so, when counsel for the applicants assumed agency he should have attended to the anomalies rather than seek to proceed as if the application was proper.

Counsel for the applicants, on his part, seemed not to appreciate the defective nature of the application.

He contended that since the application is titled 'Urgent Chamber Application for a provisional interdict order in terms of Order 32 Rule 244 of the High Court Rules' that should suffice especially as the court set it down for hearing.

The fallacy with this argument is that counsel for the applicants missed the point, that, as a legal practitioner, he was engaged to assist the applicants to put their case in its proper perspective and ensure their rights and interests are protected. He ought to have addressed his mind to the anomalies pointed out and decided on how best to correct the anomalies. He could easily have applied for condonation for the failure to comply with the Rules as the applicants were lay persons and self actors and sought leave to attend to the anomalies so that the matter is decided on the merits.

Rule 241(1) states that:-

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are briefly set out as the basis of the application and affidavits are tendered in support of the application.

In Form 29, which is to be used with modifications as appropriate, the applicant gives notice to the respondents of his application for an order in terms of the draft and that the accompanying affidavits and documents shall be used in support of the application. The format further informs the respondent of the procedural steps to be taken.

An analysis of the application before me shows that the format adopted by the applicants does not comply with either Form 29B or Form 29.

It does not contain the plethora of procedural rights that the respondents are alerted to in Form 29, or the summary of the grounds of the application required in Form 29B. This is a substantial departure from the Rules which is fatal; see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H).

As already alluded to above, counsel for the applicants opted to proceed with the defective application without applying for condonation of the failure to comply with the Rules. Ample opportunity was given for counsel to have addressed his mind to the issues at hand in the form of postponements of the hearing, but, alas, he was adamant in proceeding with the papers as filed by self actors. I am of the view that the application cannot stand. The application will be struck off the roll for non-compliance with the Rules with the applicants to pay costs on the ordinary scale.

Accordingly, the application is hereby struck off the roll with the applicants to pay costs on the ordinary scale.

Urgency re: Certificate of Urgency

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii) Secondly, Rule 244 requires that the urgent chamber application should have a certificate of urgency prepared by a legal practitioner.

The application before court has an affidavit of urgency by the first applicant....,.

On the second point in limine, counsel for the applicants contended that Rule 244 does not make it mandatory for self actors to file certificate of urgency by legal practitioner. The certificate is required where a party is to be represented by a legal practitioner. In this case, the applicants were self-actors at the time of preparing and filing the application. They were still self actors on the date of the first hearing....,.

On the second point in limine, counsel for the applicants aptly responded to this. Rule 244 states that:-

“Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of sub rule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the Registrar shall immediately submit it to a judge, who shall consider the papers forthwith.”

Paragraph (b) of the above mentioned sub-rule (2) of Rule 242 states that:-

“Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct, or urgent for one or more of the reasons set out in paragraph(a),(b),(c),(d) or (e) of sub rule(1).”…,.

I am of the view that where an applicant is a self-actor a judge seized with such an application must assess whether, despite the absence of a certificate of urgency, the matter is urgent. To decline to take such a step just because a legal practitioner has not so certified would do injustice to indigent applicants who cannot afford a legal practitioner.

I do not understand the Rule to imply that such a legal practitioner will provide such a service for free. By this, I am not in any way oblivious of the danger of an influx of such applications hence the judge, once seized with the application, must do a careful assessment, and, based on that, decide on the urgency or otherwise of the application. I am aware of several self actors who have been entertained by this court on urgent basis based on their own papers alleging urgency and the judge assessing that the matter is really urgent.

In casu, the affidavit of urgency clearly shows the circumstances that make the application deserving of this court's urgent attention had it been properly before me.

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii)...,.

(iii) The third point in limine was to the effect that as the dispute pertains to a deceased estate the Master should have been cited as a party. Failure to cite the Master and the executor of the estate is a fatal defect....,.

On the last point, counsel for the applicants contended that the Master, as custodian of deceased estates, could have been cited, but, failure to cite the Master was because no relief was being sought against the Master. The official cited is the Registrar of Deeds as relief was being sought against him....,.

Whilst accepting that in cases involving deceased estates it is important to cite the Master as the official entrusted with overseeing the administration of deceased estates, I am however of the view that the non-citation of the Master is not fatal to this case. This court can still make a determination as between the parties cited.

In this regard Rule 87(1) states that:-

“No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

See Moyo v Ncube & Others 2008 (2) ZLR 333 (H).

From the foregoing, it must thus be clear that the non-joinder of the Master is not fatal to the application.

It may also be noted that in terms of Rule 248, the Master may still be asked to file his report on the estate even if he has not been cited as a party. That Rule states that:-

“(1) In the case of any application in connection with -

(a) The estate of a deceased person; or

(b)…,.

A copy of the application shall be served on the Master not less than ten days before the date of set down for his consideration, and for report by him if he considers it necessary or the court requires such a report.”

The avenue for the Master to provide his input is thus available even if he has not been cited. Failure to cite the Master is thus not fatal especially where, as in this case, no relief is being sought against him.

Master's Report, the Master of the High Court's Authority and Obligations to Heirs and Minors

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii)...,.

(iii) The third point in limine was to the effect that as the dispute pertains to a deceased estate the Master should have been cited as a party. Failure to cite the Master and the executor of the estate is a fatal defect....,.

On the last point, counsel for the applicants contended that the Master, as custodian of deceased estates, could have been cited, but, failure to cite the Master was because no relief was being sought against the Master. The official cited is the Registrar of Deeds as relief was being sought against him....,.

Whilst accepting that in cases involving deceased estates it is important to cite the Master as the official entrusted with overseeing the administration of deceased estates, I am however of the view that the non-citation of the Master is not fatal to this case. This court can still make a determination as between the parties cited.

In this regard Rule 87(1) states that:-

“No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

See Moyo v Ncube & Others 2008 (2) ZLR 333 (H).

From the foregoing, it must thus be clear that the non-joinder of the Master is not fatal to the application.

It may also be noted that in terms of Rule 248, the Master may still be asked to file his report on the estate even if he has not been cited as a party. That Rule states that:-

“(1) In the case of any application in connection with -

(a) The estate of a deceased person; or

(b)…,.

A copy of the application shall be served on the Master not less than ten days before the date of set down for his consideration, and for report by him if he considers it necessary or the court requires such a report.”

The avenue for the Master to provide his input is thus available even if he has not been cited. Failure to cite the Master is thus not fatal especially where, as in this case, no relief is being sought against him.

Citation and Joinder re: Party Acting in Official Capacity, Statutory or Peremptory Citation and Delegated Authority

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015....,.

Counsel for the applicants contended that..., the official cited is the Registrar of Deeds as relief was being sought against him.

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii) Secondly, Rule 244 requires that the urgent chamber application should have a certificate of urgency prepared by a legal practitioner.

The application before court has an affidavit of urgency by the first applicant....,.

On the second point in limine, counsel for the applicants contended that Rule 244 does not make it mandatory for self actors to file certificate of urgency by legal practitioner. The certificate is required where a party is to be represented by a legal practitioner. In this case, the applicants were self-actors at the time of preparing and filing the application. They were still self actors on the date of the first hearing....,.

On the second point in limine, counsel for the applicants aptly responded to this. Rule 244 states that:-

“Where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of sub rule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the Registrar shall immediately submit it to a judge, who shall consider the papers forthwith.”

Paragraph (b) of the above mentioned sub-rule (2) of Rule 242 states that:-

“Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct, or urgent for one or more of the reasons set out in paragraph(a),(b),(c),(d) or (e) of sub rule(1).”…,.

I am of the view that where an applicant is a self-actor a judge seized with such an application must assess whether, despite the absence of a certificate of urgency, the matter is urgent. To decline to take such a step just because a legal practitioner has not so certified would do injustice to indigent applicants who cannot afford a legal practitioner.

I do not understand the Rule to imply that such a legal practitioner will provide such a service for free. By this, I am not in any way oblivious of the danger of an influx of such applications hence the judge, once seized with the application, must do a careful assessment, and, based on that, decide on the urgency or otherwise of the application. I am aware of several self actors who have been entertained by this court on urgent basis based on their own papers alleging urgency and the judge assessing that the matter is really urgent.

In casu, the affidavit of urgency clearly shows the circumstances that make the application deserving of this court's urgent attention had it been properly before me.

Final Orders re: Procedural Irregularities & Discretion of Court to Condone, Interfere, Dismiss, Strike, Remit or Set Aside

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i) Firstly, that the application is incurably defective, and so, technically, there was no application before me.

He argued that the application was not in compliance with Rule 241(1) of the High Court Rules 1971. That Rule states that an urgent chamber application shall be in Form 29B and state the grounds for the application....,.

In his first point in limine, counsel for the respondents pointed to the requirements of Rule 241(1) of which the papers before me were not in compliance with. He argued that the defect is such that there is no application before court. As for the fact that the applicants were self-actors and so could not be expected to assiduously adhere to the requirements of the Rule, counsel for the respondents argued that whilst that may have been so, when counsel for the applicants assumed agency he should have attended to the anomalies rather than seek to proceed as if the application was proper.

Counsel for the applicants, on his part, seemed not to appreciate the defective nature of the application.

He contended that since the application is titled 'Urgent Chamber Application for a provisional interdict order in terms of Order 32 Rule 244 of the High Court Rules' that should suffice especially as the court set it down for hearing.

The fallacy with this argument is that counsel for the applicants missed the point, that, as a legal practitioner, he was engaged to assist the applicants to put their case in its proper perspective and ensure their rights and interests are protected. He ought to have addressed his mind to the anomalies pointed out and decided on how best to correct the anomalies. He could easily have applied for condonation for the failure to comply with the Rules as the applicants were lay persons and self actors and sought leave to attend to the anomalies so that the matter is decided on the merits.

Rule 241(1) states that:-

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are briefly set out as the basis of the application and affidavits are tendered in support of the application.

In Form 29, which is to be used with modifications as appropriate, the applicant gives notice to the respondents of his application for an order in terms of the draft and that the accompanying affidavits and documents shall be used in support of the application. The format further informs the respondent of the procedural steps to be taken.

An analysis of the application before me shows that the format adopted by the applicants does not comply with either Form 29B or Form 29.

It does not contain the plethora of procedural rights that the respondents are alerted to in Form 29, or the summary of the grounds of the application required in Form 29B. This is a substantial departure from the Rules which is fatal; see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H).

As already alluded to above, counsel for the applicants opted to proceed with the defective application without applying for condonation of the failure to comply with the Rules. Ample opportunity was given for counsel to have addressed his mind to the issues at hand in the form of postponements of the hearing, but, alas, he was adamant in proceeding with the papers as filed by self actors. I am of the view that the application cannot stand. The application will be struck off the roll for non-compliance with the Rules with the applicants to pay costs on the ordinary scale.

Accordingly, the application is hereby struck off the roll with the applicants to pay costs on the ordinary scale.

Condonation or Judicial Indulgence re: Consequential Effects of Negligent Acts of Legal Practitioners

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i) Firstly, that the application is incurably defective, and so, technically, there was no application before me.

He argued that the application was not in compliance with Rule 241(1) of the High Court Rules 1971. That Rule states that an urgent chamber application shall be in Form 29B and state the grounds for the application....,.

In his first point in limine, counsel for the respondents pointed to the requirements of Rule 241(1) of which the papers before me were not in compliance with. He argued that the defect is such that there is no application before court. As for the fact that the applicants were self-actors and so could not be expected to assiduously adhere to the requirements of the Rule, counsel for the respondents argued that whilst that may have been so, when counsel for the applicants assumed agency he should have attended to the anomalies rather than seek to proceed as if the application was proper.

Counsel for the applicants, on his part, seemed not to appreciate the defective nature of the application.

He contended that since the application is titled 'Urgent Chamber Application for a provisional interdict order in terms of Order 32 Rule 244 of the High Court Rules' that should suffice especially as the court set it down for hearing.

The fallacy with this argument is that counsel for the applicants missed the point, that, as a legal practitioner, he was engaged to assist the applicants to put their case in its proper perspective and ensure their rights and interests are protected. He ought to have addressed his mind to the anomalies pointed out and decided on how best to correct the anomalies. He could easily have applied for condonation for the failure to comply with the Rules as the applicants were lay persons and self actors and sought leave to attend to the anomalies so that the matter is decided on the merits.

Rule 241(1) states that:-

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are briefly set out as the basis of the application and affidavits are tendered in support of the application.

In Form 29, which is to be used with modifications as appropriate, the applicant gives notice to the respondents of his application for an order in terms of the draft and that the accompanying affidavits and documents shall be used in support of the application. The format further informs the respondent of the procedural steps to be taken.

An analysis of the application before me shows that the format adopted by the applicants does not comply with either Form 29B or Form 29.

It does not contain the plethora of procedural rights that the respondents are alerted to in Form 29, or the summary of the grounds of the application required in Form 29B. This is a substantial departure from the Rules which is fatal; see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H).

As already alluded to above, counsel for the applicants opted to proceed with the defective application without applying for condonation of the failure to comply with the Rules. Ample opportunity was given for counsel to have addressed his mind to the issues at hand in the form of postponements of the hearing, but, alas, he was adamant in proceeding with the papers as filed by self actors. I am of the view that the application cannot stand. The application will be struck off the roll for non-compliance with the Rules with the applicants to pay costs on the ordinary scale.

Accordingly, the application is hereby struck off the roll with the applicants to pay costs on the ordinary scale.

Rules of Court re: Approach, Abuse of Court Process, Strict and Substantial Compliance & Pleading of Form over Substance

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i) Firstly, that the application is incurably defective, and so, technically, there was no application before me.

He argued that the application was not in compliance with Rule 241(1) of the High Court Rules 1971. That Rule states that an urgent chamber application shall be in Form 29B and state the grounds for the application....,.

In his first point in limine, counsel for the respondents pointed to the requirements of Rule 241(1) of which the papers before me were not in compliance with. He argued that the defect is such that there is no application before court. As for the fact that the applicants were self-actors and so could not be expected to assiduously adhere to the requirements of the Rule, counsel for the respondents argued that whilst that may have been so, when counsel for the applicants assumed agency he should have attended to the anomalies rather than seek to proceed as if the application was proper.

Counsel for the applicants, on his part, seemed not to appreciate the defective nature of the application.

He contended that since the application is titled 'Urgent Chamber Application for a provisional interdict order in terms of Order 32 Rule 244 of the High Court Rules' that should suffice especially as the court set it down for hearing.

The fallacy with this argument is that counsel for the applicants missed the point, that, as a legal practitioner, he was engaged to assist the applicants to put their case in its proper perspective and ensure their rights and interests are protected. He ought to have addressed his mind to the anomalies pointed out and decided on how best to correct the anomalies. He could easily have applied for condonation for the failure to comply with the Rules as the applicants were lay persons and self actors and sought leave to attend to the anomalies so that the matter is decided on the merits.

Rule 241(1) states that:-

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are briefly set out as the basis of the application and affidavits are tendered in support of the application.

In Form 29, which is to be used with modifications as appropriate, the applicant gives notice to the respondents of his application for an order in terms of the draft and that the accompanying affidavits and documents shall be used in support of the application. The format further informs the respondent of the procedural steps to be taken.

An analysis of the application before me shows that the format adopted by the applicants does not comply with either Form 29B or Form 29.

It does not contain the plethora of procedural rights that the respondents are alerted to in Form 29, or the summary of the grounds of the application required in Form 29B. This is a substantial departure from the Rules which is fatal; see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H).

As already alluded to above, counsel for the applicants opted to proceed with the defective application without applying for condonation of the failure to comply with the Rules. Ample opportunity was given for counsel to have addressed his mind to the issues at hand in the form of postponements of the hearing, but, alas, he was adamant in proceeding with the papers as filed by self actors. I am of the view that the application cannot stand. The application will be struck off the roll for non-compliance with the Rules with the applicants to pay costs on the ordinary scale.

Accordingly, the application is hereby struck off the roll with the applicants to pay costs on the ordinary scale.

Rights of Beneficiaries re: Intestate Succession iro Approach, Maintenance, Surviving Spouse and Children

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

Costs re: Wasted Costs

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i) Firstly, that the application is incurably defective, and so, technically, there was no application before me.

He argued that the application was not in compliance with Rule 241(1) of the High Court Rules 1971. That Rule states that an urgent chamber application shall be in Form 29B and state the grounds for the application....,.

In his first point in limine, counsel for the respondents pointed to the requirements of Rule 241(1) of which the papers before me were not in compliance with. He argued that the defect is such that there is no application before court. As for the fact that the applicants were self-actors and so could not be expected to assiduously adhere to the requirements of the Rule, counsel for the respondents argued that whilst that may have been so, when counsel for the applicants assumed agency he should have attended to the anomalies rather than seek to proceed as if the application was proper.

Counsel for the applicants, on his part, seemed not to appreciate the defective nature of the application.

He contended that since the application is titled 'Urgent Chamber Application for a provisional interdict order in terms of Order 32 Rule 244 of the High Court Rules' that should suffice especially as the court set it down for hearing.

The fallacy with this argument is that counsel for the applicants missed the point, that, as a legal practitioner, he was engaged to assist the applicants to put their case in its proper perspective and ensure their rights and interests are protected. He ought to have addressed his mind to the anomalies pointed out and decided on how best to correct the anomalies. He could easily have applied for condonation for the failure to comply with the Rules as the applicants were lay persons and self actors and sought leave to attend to the anomalies so that the matter is decided on the merits.

Rule 241(1) states that:-

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are briefly set out as the basis of the application and affidavits are tendered in support of the application.

In Form 29, which is to be used with modifications as appropriate, the applicant gives notice to the respondents of his application for an order in terms of the draft and that the accompanying affidavits and documents shall be used in support of the application. The format further informs the respondent of the procedural steps to be taken.

An analysis of the application before me shows that the format adopted by the applicants does not comply with either Form 29B or Form 29.

It does not contain the plethora of procedural rights that the respondents are alerted to in Form 29, or the summary of the grounds of the application required in Form 29B. This is a substantial departure from the Rules which is fatal; see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H).

As already alluded to above, counsel for the applicants opted to proceed with the defective application without applying for condonation of the failure to comply with the Rules. Ample opportunity was given for counsel to have addressed his mind to the issues at hand in the form of postponements of the hearing, but, alas, he was adamant in proceeding with the papers as filed by self actors. I am of the view that the application cannot stand. The application will be struck off the roll for non-compliance with the Rules with the applicants to pay costs on the ordinary scale.

Accordingly, the application is hereby struck off the roll with the applicants to pay costs on the ordinary scale.

Law Portal
Zimbabwe

HH318-15 - DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS