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

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The Master of the High Court has no power to appoint a trustee so that if a trustee appointed in a Will has renounced his appointment, or the trustee is incompetent, or, having been appointed, is for some reason no longer acting, or, if a testator has created a trust ...

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.

At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms of the then Marriages Act [Chapter 37].

The parties initially contracted a customary law union. This union was subsequently solemnised on 14 June 1991. Up till then, the deceased was a widower, having been customarily married to Mary–Maria Mabwe in 1971. She died intestate in October 1987.

During the subsistence of this first marriage, the spouses acquired an immovable property known as House Number 7447, 6th Way, Glen View 7, Harare. The house was registered in the name of the deceased, Lloyd Chimhowa. The house was acquired in 1979. The spouses jointly contributed to the development of the Stand, including the construction of a dwelling house. Mary Maria died after completion of the house.

For one reason or another, her estate was neither registered nor administered as required by law. She was survived by her husband, Lloyd Chimhowa, and six children - the applicants in this matter.

The late Lloyd Chimhowa's second marriage to the first respondent was blessed with four children. The new family continued to reside at the house left behind by Mary Maria Mabwe. Also residing at the same address were the six children borne out of the deceased's marriage to Mary-Maria Mabwe.

When the late Lloyd Chimhowa died, the first respondent was appointed executor of the deceased estate. She did not last long in that appointment after the Master wrote to her accusing her of falsifying information in order to get authority to transfer estate assets into her name. For this, the Master threatened her with criminal prosecution.

Her appointment as executor was then revoked in favour of the second respondent....,.

I believe, from the facts of this matter, that, the office of the Master followed the procedures outlined in terms of the Administration of Estates Act....,.

When the first respondent failed to meet the required standards, the Master quickly intervened revoking her appointment as executor and replacing her with the second respondent.

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

It is worth noting that the first respondent did not seek to challenge the appointment of the late Lekinala Moffat as heir to her husband's estate. She accepted the position, and only sought to assert her rights to the property after the death of Lekinala Moffat. For the court to reverse that state of affairs, ...

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

The applicant is one of the two surviving children of the late Norman Katsande and a beneficiary to his estate. He also purported to be acting on behalf of the other surviving child of the late Norman Katsande, namely, Milenda Tinashe Katsande who is still a minor. The first respondent is a brother to the late ...

The first respondent is a brother to the late Norman Katsande and he is the executor testamentary of the estate late Norman Katsande.

The second respondent is a male adult who purportedly bought House No.18806 Unit L. Seke Chitungwiza from the first respondent.

The brief facts of the case are that the applicant and Milenda Tinashe Katsande are the only surviving children of the late Norman Katsande and the late Hilda Gamanya. Hilda Gamanya died in August 1996. Norman Katsande died on 26 March 2001.

Before his demise, Norman Katsande executed a Will and Testament on 17 January 2001. In terms of clause 1 of the aforesaid Will, Norman Katsande appointed his brother, Razmond Katsande, as the executor. In clause 3 of the Will, Norman Katsande bequeathed to the applicant House No.18806 Unit L, Seke, Chitungwiza and Stand No.2310 Lower Paradise, Marondera in these terms:-

“I direct that:-

(a) House No.18806 Unit L, Seke, Chitungwiza, for which was acquired during my first marriage shall devolve upon my son KUDZANAYI FRANK KATSANDE, presently residing at 18806 Unit L, Seke, Chitungwiza who shall exercise such responsibility and execute such paternal duties as I would have done over my daughter MILENDA TINASHE KATSANDE.

(b) Stand Number 2310 Lower Paradise in Marondera shall only be disposed as and when my estate failed to meet claims and demands, otherwise it shall devolve upon my son KUDZANAYI FRANK KATSANDE.

On 26 September 2007, the third respondent issued the first respondent with a Letter of Administration as the executor testamentary in terms of the aforesaid Will.

In the same year, 2007, the first respondent sold House No.18806 Unit L, Seke, Chitungwiza to the second respondent. The Agreement of Sale was entered into on 11 October 2007 apparently without a consent to sell from the Master of the High Court. In his report, the Master of the High Court indicated that the consent to the sale was only obtained three months after the sale. The purported consent to the sale document is not dated. If at all it was dated such date is not legible from the copy filed with court.

On 25 March 2009, the applicant applied to this court, by way of a court application, seeking an order that:-

1. The consent to sell House No.18806 Unit L, Seke, Chitungwiza given by the Master of the High Court sometime in 2007 be and is hereby set aside.

2. The appointment of Razmond Katsande as the executor testamentary in the estate late Norman Katsande be and is hereby set aside.

3. The purported sale of House No.18806 Unit L, Seke, Chitungwiza to the second respondent be and is hereby set aside and the second respondent and all who claim right of occupation through him of House No.18806 Unit L, Seke, Chitungwiza be and are hereby ordered to vacate the premises within forty-eight (48 hours) of being served with this order.

4. In the event that the second respondent and all who claim right of occupation through him fail to comply with paragraph 3 above, the Deputy Sheriff be and is hereby authorized to evict them from House No.18806 Unit L, Seke, Chitungwiza.

5. The fourth respondent be and is hereby ordered not to cede rights and title in House No.18806 Unit L, Seke, Chitungwiza from the name of the late Norman Katsande into any other name except the applicant, and, in the event that such cession had been effected it is hereby set aside.

6. The first respondent shall pay the costs of this suit on a legal practitioner-client scale.

All the respondents were duly served with the court application in terms of the rules.

The first respondent did not file any opposing papers.

The second respondent filed opposing papers contending that he is an innocent purchaser.

The third respondent filed the requisite Master's Report in terms of the rules expressing his views on the issues at hand.

The fourth respondent did not file any papers in response to the application.

The applicant's argument was to the effect that the sale to the second respondent was wrongful as the first respondent was not empowered by the Will to sell the house in question. If there was need to sell any immovable property the first respondent was authorized to sell Stand No.2310 Lower Paradise, Marondera and not the house in question. The sale has left the applicant and his sister destitute and with no accommodation.

The applicant also argued that the purported consent to the sale by the Master of the High Court was contrary to the provisions of his late father's Will and so ineffective.

On his part, the second respondent contended that the applicant's case must be dismissed because he is an innocent purchaser. The second respondent contended that the property was advertised in the Herald by an estate agent. He went and viewed the house after which he offered to buy it. The first respondent told him that the property was from a deceased estate. The first respondent showed him all documents pertaining to the house except the Master of the High Court's consent to the sale. They agreed on the purchase price but he indicated that he would only pay after the first respondent had obtained the consent to the sale and shown him the same. Later on, the first respondent advised him that he had now obtained the consent to the sale. Upon being shown the consent to the sale document he duly paid the purchase price. He is therefore an innocent purchaser whose rights can no longer be taken away. The applicant's recourse is to sue the first respondent.

The third respondent's response to the application was to the effect that the first respondent misrepresented the facts when seeking consent to the sale. The first respondent had indicated that he wished to buy two (2) smaller houses for the minors but up to now nothing had been done. The third respondent went on to say that in any case the sale took place on 11 October 2007 some three months before the granting of the Master of the High Court's consent in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01].

The issues as identified by the parties included:-

(1) Whether the first respondent, Razmond Katsande, being the duly appointed executor testamentary failed to execute his duties by fraudulently obtaining the consent to sell the house.

(2) Whether the second respondent is a bona fide or innocent third party.

(3) Whether the relief sought is the only relief available to the applicant.

I am of the view that this matter can be resolved on the first issue and answers to the other issues will fall into place.

(1) Whether the first respondent, Razmond Katsande, being the duly appointed executor testamentary failed to execute his duties by fraudulently obtaining the consent to sell the house

Section 52(1) of the Administration of Estates Act [Chapter 6:01] states that:-

“Every executor shall administer and distribute the estate in respect of which he is appointed according to law and the provisions of any Will relating to that estate.”

In the administration of the estate, an executor is required to act with utmost good faith and every thing is done for the benefit of the beneficiaries.

In casu, the first respondent was appointed in terms of a valid Will. He was thus bound to act in terms of the law and provisions of that Will. The question that arises is; what did the Will provide regarding the immovable properties and did the first respondent comply with those provisions?

Clause 3 of the Will on the immovable property stated that:-

“I direct that:-

(a) House Number 18806 Unit L Seke, Chitungwiza for which was acquired during my first marriage shall devolve upon my son, KUDZANAYI FRANK KATSANDE, presently residing at 18806 Unit L Seke, Chitungwiza who shall exercise such responsibility and execute such paternal duties as I would have done over my daughter MILENDA TINASHE KATSANDE.”

Clearly, the late Norman Katsande intended this particular immovable property to devolve to his son, the applicant. This is how the first respondent was to execute his mandate. The executor was duty bound to comply with that provision. There is no ambiguity in that clause at all.

The late Norman Katsande, being mindful that there may be debts to be paid which may necessitate the sale of some property went on to provide, in clause 3(b), that:-

“b. Stand Number 2310 Lower Paradise in Marondera shall only be disposed as and when my estate failed to meet claims and demands, otherwise it shall devolve upon my son KUDZANAYI FRANK KATSANDE.”

Clause 3(b) is not ambiguous at all.

The Stand was only to be sold if, and only if, the estate failed to meet claims and demands from his creditors; otherwise it was to devolve to the applicant, as was the case with House No.18806 Unit L Seke, Chitungwiza. The first respondent was expected to comply with this provision as well.

The condition that was set for the Marondera property to be sold had to be satisfied first. The property could thus not be sold for any other reason serve to meet claims and demands that the estate failed to meet.

The clear intention of the testator, as evident from the Will, was that both immovable properties were to devolve to the applicant. House No.18806 in Unit L Seke, Chitungwiza was not to be sold at all whilst the Stand in Marondera was to be sold only for purposes of meeting outstanding debts, if any. The first respondent's duty was to act in terms of the clear intentions of the late Norman Katsande.

The executor, if acting in good faith, needed to show that a need had arisen to dispose of the Marondera Stand in terms of the condition set by the testator. He could not devise his own conditions or reasons to sell the property. As for the Unit L, Seke house the executor had no authority to sell it at all.

In his report, the Master of the High Court stated that the first respondent represented that he wanted to sell the Seke house so that he could buy two (2) smaller houses for the minor children. That was clearly not in terms of the law and was contrary to the provisions of the Will.

Master's Report

It is trite law that where estate property is to be sold it must be done in accordance with the Administration of Estates Act [Chapter 6:01].

Section 120 of the Administration of Estates Act states that:-

“If, after due inquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate otherwise than by public auction he may, if the Will of the deceased contains no provision to the contrary, grant the necessary authority to the executor so to act.”

In this case the Master of the High Court's consent was of no consequence as the Will did not provide for the sale of this particular property, if anything it provided to the contrary.

In any case, section 122 of the Administration of Estates Act states that:-

“In cases where minor heirs are interested in property inherited from the estate of any deceased person the Master may apply, through the chamber book, to a judge in chambers for authority for the lease, mortgage, sale or other disposition of such property, and the judge may make such order as in the circumstances he considers advisable.”

In casu, it is common cause that the applicant and his sister, Milenda Tinashe Katsande, were minors and were heirs to the property in question.

If the property was to be disposed of in any way, including the Marondera property, the Master of the High Court should have complied with section 122 of the Administration of Estates Act. In his report, the Master of the High Court did not state that he had complied with this section at all. It is clear from all the submissions that the sale was in violation of the specific provisions of the law. See Emmanuel Nemuseso v Dorothy Mashita & Others HH122-09.

I am of the firm view that the net effect of the anomalies pointed above, as regards both the executor and the Master of the High Court, is that the purported sale of House No.18806 Unit L Seke, Chitungwiza by the first respondent to the second respondent is a nullity. Not only did the first respondent not have the right or authority to do so from the Will itself, but he also acted dishonestly and fraudulently in obtaining the Master of the High Court's consent to sell. As already shown, the consent itself was not proper in the light of the clear provisions of the Will and the law applicable in such cases.

Consequences of a nullity

Where an act is a nullity, the innocence or otherwise of the other party to the act is of no assistance at all. This is so because nothing can be built on nothing.

In F. Katirawu v D. Katirawu and 3 Others HH58-07 the second respondent had claimed to be an innocent purchaser of rights and interests in a property where the purported executor was found to have acted fraudulently in obtaining the Letters of Administration. After holding that the sale was a non-sale, MAKARAU JP went on to say that:-

“In conclusion, the rights that the second respondent believes to have purchased and acquired from the first respondent are tainted by the same illegality and amount to nought by token of the same reasoning. It is as if there was never a sale between her and the first respondent, and, consequently, no rights can flow from a non-sale in her favor. The sale and the consequent cession of rights in her favor amount to nothing at law for nothing legal can flow from a fraud.”…,.

In casu, the purported sale was contrary to the provisions of the Will and was done without following the law as pointed to above. The first respondent went clearly against the intention of the testator. One can say he acted dishonestly and clearly contrary to the provisions of the Will he was supposed to execute. In my view, whatever he did was a non-sale. He purported to sell something he had no power and was in fact prohibited from selling.

The issue of innocent purchaser would thus not turn a non-sale into a valid sale. There was nothing for the first respondent to sell and for the second respondent to purchase as the law and provisions of the Will did not allow the sale. The first respondent's purported sale was an act of illegality.

It is pertinent to note that the Master of the High Court's office needs to awaken to the serious duties and responsibilities bestowed on that office in deceased estates.

As already alluded to, section 120 of the Administration of Estates Act enjoins the Master of the High Court to do an inquiry in order to be satisfied that the request being made would be to the advantage of the persons interested in the estate to sell the property. Due inquiry connotes that the Master of the High Court takes active or positive steps to verify the contents of the application before granting the consent. In cases where minors are the beneficiaries it may necessitate the appointment of a curator ad litem to ensure that the interests of the minors are protected. Had such an inquiry been made the Master of the High Court would easily have realized that the request was contrary to the provisions of the Will as the house in question was unconditionally bequeathed to the applicant. Through the inquiry, the Master would have been further alerted to the fact that as the heirs/ beneficiaries were minors, section 122 of the Administration of Estates Act needed to be complied with if ever such a request was to be granted.

I would implore the Master of the High Court's office to take such requests from executors seriously as failure to do so may bring that office into disrepute.

I raise this issue because, of late, applications in which the Master of the High Court's office had granted consent to sell well after the properties had been sold or where minors are the beneficiaries or interested persons without complying with section 122 of the Administration of Estates Act have become common.

Whenever a minor is involved, as beneficiary or interested party, the Master of the High Court's office must, in my view, take extra caution and ensure that the provisions of the law are adhered to as there is ever the temptation, on the part of executors and others, to prejudice the minors who will, in many cases, not be consulted or represented by a curator ad litem.

The applicant also prayed for the removal of the first respondent as executor.

The first respondent, despite being properly served with the application, did not deem it fit to file any opposing papers. This is despite the fact that serious allegations were made against him regarding the manner he administered the estate. As the applicant's allegations were unchallenged I take that is the truth.

The first respondent has lamentably failed to administer the estate for the benefit of beneficiaries. He, instead, did whatever he did, including the purported sale of the house in question, for his own benefit much contrary to the law and provisions of the Will.

Where an executor lamentably fails to perform his duties according to the mandate given, can there be any good reason why he should remain in the office?

In my view, there is no good reason why the first respondent should remain in the office. Any minute he remains in that office may be used for self aggrandizement/enrichment at the expense of the beneficiaries. It is only proper that he be removed from that office forthwith. I find support for this from the words of MAKARAU JP in F. Katirawu v D. Katirawu and 3 Others HH58-07…, wherein, after discussing a number of cases on the grounds for removal of an executor, she said that:-

“It has been held that under Roman- Dutch Law, the court possesses inherent power to remove a trustee or administrator (even one appointed under a Will), on the ground that his continuance in office will prejudicially affect the future welfare of the estate entrusted to him.”

See also Fey NO and Whiteford NO v Serfontein and Another 1993 (2) SA 6059 (AD).

After considering whether the court can do so at the instance of a beneficiary or only if such application for removal is brought by the Master of the High Court, MAKARAU JP went on to say…, that:-

“While section 117(1) empowers the Master to approach the court for the removal of an executor for the listed grounds, in my view, such a power granted to the Master 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 court, that the continuance in office of the executor does not augur well for the future welfare of the estate and beneficiaries. The power granted to the Master by section 117 is, in my view, complementary to the inherent power of the court at common law. In any event, if it was the intention of the legislature to revoke the common law power of the court in this regard, it would have done so in express language for the jurisdiction of the court is not ousted other than in clear language.

Applying the above law to the facts before me, it is my finding that the applicant, as a beneficiary in the estate, has the capacity to approach this court at common law to move the court for the removal of the first respondent as an executor.”

In the case before me, the applicant, as the beneficiary, has the capacity to move this court for the removal of the first respondent as executor. His grounds are clearly under common law. He has alleged fraudulent conduct on the part of the first respondent in the manner in which he obtained the Master of the High Court's consent to sell. The Master also alluded to the same acts of dishonesty on the part of the first respondent. There is no denial that so far the first respondent's conduct has been to the prejudice of the beneficiaries of the estate and clearly justice demands that he be removed from that office.

Eviction and costs

The eviction of anyone in occupation of the property is a nature consequence of the finding that the purported sale was a nullity. The second respondent and all those claiming right of occupation through him must vacate the premises within an appropriate period. The applicant's quest was for the second respondent to vacate within forty-eight (48) hours. There is need to give the occupants reasonable time within which to vacate the premises. In this regard, a period of seven days should be adequate taking into account the circumstances of the case…,.

Accordingly it is hereby ordered that:-

1. The consent to sell House No. 18806 Unit L, Seke, Chitungwiza given by the Master of the High Court sometime in 2007 be and is hereby set aside.

2. The appointment of Razmond Katsande as the Executor Testamentary in the estate late Norman Katsande be and is hereby set aside.

3. The purported sale of House No. 18806 Unit L, Seke, Chitungwiza to the second respondent be and is hereby set aside.

4. The second respondent and all those who claim right of occupation through him of House No. 18806 Unit L, Seke, Chitungwiza be and are hereby ordered to vacate the premises within seven (7) days of being served with this order.

5. In the event that the second respondent and all those who claim right of occupation through him fail to comply with paragraph 4 above, the Deputy Sheriff be and is hereby authorized to evict them from House No.18806 Unit L, Seke, Chitungwiza.

6. The fourth respondent be and is hereby ordered not to cede rights and title in House No.18806 Unit L, Seke, Chitungwiza from the name of the late Norman Katsande into any other name except the applicant and in the event that such cession had been effected it is hereby set aside and the House must be ceded to the applicant.

7....,.

8. The Registrar is hereby directed to serve a copy of this judgment on the Master of the High Court.

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

In practice, the duties of an executor only terminate when the estate has been fully distributed and proof of such distribution or transfer to the beneficiaries has been furnished to the Master of the High Court.

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The next issue to be determined is whether the first respondent should be removed as executor of the estate. It is trite that a beneficiary to an estate may apply, at common law, for the removal of an executor. It is not in dispute that being the surviving spouse of the deceased the applicant is a ...

The next issue to be determined is whether the first respondent should be removed as executor of the estate.

It is trite that a beneficiary to an estate may apply, at common law, for the removal of an executor. It is not in dispute that being the surviving spouse of the deceased the applicant is a beneficiary of the estate. The basis upon which he can seek the removal of the first respondent is if he can show that his continuance in office will not auger well for the future welfare of the estate and the beneficiaries. (See Katirawu v Katirawu HH58-07). The decision by the first respondent, as executor, to have the immovable property left by the deceased shared by him, in conjunction with the minor children, was clearly wrong. He was not a beneficiary to the estate in the light of the fact that the deceased was survived by her three children. It seems to me that the best interest of this estate would be best served by the appointment of an independent executor who would be able to look objectively at the interests of all the beneficiaries. The deceased was survived by three children two of whom she had with the applicant. The interests of these three children must be catered for. She also left a surviving spouse who is entitled to a share in the estate - although he is now staying with another wife. The new executor must balance all these interests and come up with a distribution plan which takes cognizance of the fact that at the time of her death the applicant was now living elsewhere. In my view, the incumbent executor would find it very difficult to weigh these conflicting interests in a balanced way, especially if one takes into account the stance he had already taken in relation to the distribution of the property.

It is for these reasons that I would accede to the applicant's claim that the first respondent be removed as executor….,.

1. …,.

2. The first respondent is hereby removed as executor of the estate late Alice Mukowamombe.

3. ….,.

4. The Master shall, as soon as practically possible, call for a meeting for the appointment of a neutral executor.

HH218-10 : KENIAS MUTYASIRA vs BARBRA GONYORA
Ruled By: CHITAKUNYE J

This matter was referred to me in chambers in terms of the provisions of Order 38, Rule 313 of the High Court Rules, 1971. The basic background is as follows - In 1976, the late Muchineripi Rishon Gonyora…, married the respondent in terms of the African Marriages Act [Chapter 5:07]. The late Muchineripi Rishon Gonyora ...

This matter was referred to me in chambers in terms of the provisions of Order 38, Rule 313 of the High Court Rules, 1971. The basic background is as follows -

In 1976, the late Muchineripi Rishon Gonyora…, married the respondent in terms of the African Marriages Act [Chapter 5:07]. The late Muchineripi Rishon Gonyora died on 13 August 2002 in Harare. Barbra Gonyora registered the late Muchineripi Rishon Gonyora's estate at Harare Magistrates Civil and Customary Law Courts. On 17 October 2002 an edict meeting was held before a Provincial Magistrate. The respondent was appointed executrix dative with the powers to ascertain and verify the assets and liabilities of the late Muchineripi Rishon Gonyora, which included documentary proof of current bank balances, documentary proof of liabilities, balances with mortgage, a plan of how the estate was to be distributed among the beneficiaries and presentation of that plan before a magistrate on an agreed return date for approval.

On 25 August 2005 while the executrix was still to lay the Distribution Account and Inheritance Plan before a magistrate - and this was close to three years after her appointment - the Master of the High Court called her for a special meeting on 30 August 2005 to discuss all matters related to her late husband's estate. She duly attended the meeting with other beneficiaries of the estate. At that meeting the Master of the High Court appointed the claimant as a curator bonis in the estate. Letters of Confirmation were granted to the claimant by the Master of the High Court on the following day.

On 25 September 2005, the Master of the High Court, purporting to be acting in terms of section 25 of the Administration of Estates Act [Chapter 6:01] gave notice in the Gazette of an edict meeting to be held at his offices on 5 October 2005. The notice was however gazetted on 7 October 2005 - two days after the meeting.

The applicant and other beneficiaries however attended the meeting as they had been notified by other means. At that meeting the curator bonis was then appointed as executor dative. He, thereafter, went about carrying out the duties of his office and compiled a First and Final Liquidation Account of the estate. His involvement was first challenged by the filing of the first court application, case no. HC5567/05. He thereafter sought to dispose certain assets of a company with the Master of the High Court's consent in order to satisfy payments to certain beneficiaries and estate duties. This led to the filing of an urgent application by the respondent in HC221/06.

In both applications the respondent, who was the applicant, submitted that she was properly appointed by the Master of the High Court as the executrix dative; further that she was not lawfully removed before the Master of the High Court appointed the claimant; and lastly that that appointment by the Master of the High Court of the claimant was, in her view, therefore, void. The fate of the two applications was decided on 19 May 2006 by KUDYA J when he made an order that -

“1. The appointment of the second respondent, Mr. Kenias Mutyasira, as the Executor Dative to the Estate Late Muchineripi Rishon Gonyora DRH1989/02/DR1854/05 be and is hereby declared null and void.

2. The appointment of Barbra Gonyora, the surviving spouse, as Executrix Dative to the Estate Late Muchineripi Rishon Gonyora DRH1989/02/DR1854/05 on 17 October 2002, be and is hereby declared valid.

3. The fees of second respondent for administering the estate shall be paid by the estate up to the date that second respondent was served with the application in case No.5567/05.

4. The second respondent shall return all the assets and documents of the estate under his custody and control to the applicant within ten days of this order.

5. The costs in case no.5567/05 and HC221/06, including the costs of the hearing of the urgent application of 25 January 2006, shall be borne by the Estate Late Muchineripi Rishon Gonyora.”

The claimant was not satisfied with some aspects of the judgment and so appealed to the Supreme Court. That appeal was dismissed with costs on 28 May 2007. (See Kenias Mutyasira v Barbra Gonyora and Master of the High Court SC80-06).

HB88-11 : DEBORAH NGWENYA and NDABEZINHLE NGWENYA and NQOBIZITHA NGWENYA and NOMATHAMSANQA NGWENYA vs GLORY MPOFU N.O. and SIPHATHISIWE NCUBE and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: KAMOCHA J

The first applicant, Deborah Ngwenya, is the biological mother of the second, third and fourth applicants. She and her three children seek an order of this court in these terms:- “It is ordered: 1. That the purported winding up of the estate late Ronnie Ngwenya under DRB Number 325/08 be and is hereby nullified; 2. That the appointment of the ...

HH192-14 : LOVENESS MASEKO vs ESTATE LATE PHILLIP MUNEMO and PROSPER MUNEMO and EVANS MUNEMO and PORTIA MUNEMO and CHITUNGWIZA MUNICIPALITY and MASTER OF HIGH COURT
Ruled By: MAKONI J

The appointment of the third respondent as executor dative was done when the second respondent had not been removed as an executor. This can be done in terms of the provisions of section 117 of the Administration of Estates Act [Chapter 6:01].

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

An executor remains in office unless and until they have been lawfully relived of their duties, whether statutorily at the instance of the Master, or at the instigation of a beneficiary under common law. See F Katirawu v D Katirawu 2007 (2) ZLR 64….,. Where a person deems themselves to be a beneficiary then they must register their claim with ...

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

The second defendant…, opposed his removal on the basis that he acted professionally in administering the estate. It is now accepted in our law that there are two ways in which an executor may be removed from office. The first is by the Master, in terms of section 117(1) of the Administration of Estates Act, and, the ...

The second defendant…, opposed his removal on the basis that he acted professionally in administering the estate.

It is now accepted in our law that there are two ways in which an executor may be removed from office. The first is by the Master, in terms of section 117(1) of the Administration of Estates Act, and, the second is through the common law. The first method is demonstrated in Siziba v Siziba & Anor HB25-04 while the second is highlighted in Katirawu v Katirawu & Ors HH58-07. In Katirawu v Katirawu & Ors HH58-07…, the LEARNED JUDGE PRESIDENT held thus:

“While section 117(1) empowers the Master to approach the court for the removal of an executor for the listed grounds, in my view, such a power granted to the Master 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. The power granted to the Master by section 117 is, in my view, complementary to the inherent power of the court at common law. In any event, if it was the intention of the legislature to revoke the common law power of the court in this regard, it would have done so in express language for the jurisdiction of the court is not ousted other than in clear language.”

The plaintiff approached the court as the lawfully appointed guardian of the minor children. She followed in the footsteps of the petitioner in Volkwyn NO v Clarke & Damant 1946 WLD 456. The basis for such removal are set out in the following cases:

In The Master v Edgcombes Executors and Administrators 1910 AD 271…, MASON J stated that:

“The authorities are quite clear that any unfaithful dealing by an executor, whether connected directly with the administration of the estate under his charge or whether consisting in breach of trust in connection with other matters will justify his removal from office Voet 26, 10, 102; Bronkhorst v Rasmus 1907 TS 486.”

At page 271 he concluded thus:

“I have come to the conclusion that the court has exactly the same power to remove the respondents from the position of trustees and administrators as it would have to remove them under the common law from the position of executors.”

In Volkwyn NO v Clarke & Damant 1946 WLD 456, MURRAY J stated in similar vein…, that:

“This Court, it has been held, possesses, under common law, the same power of removal in regard to administrators and trustees, though these offices are not mentioned in the statute, as it has in regard to executors.(The Master v Edgecombe's Executors 1910 TPD at p271). The paramount consideration in deciding whether the executor or administrator should be removed is apparently whether his continuation in office will prejudicially affect the future welfare of the trust estate placed under his control.”

Under the common law, the first consideration is whether the executor's continuation in office is detrimental to the future welfare of the estate. SANDURA JP…, in Vermaak & Anor v Nish N.O. HH166-88…, phrased this requirement in similar language when he stated that:

“The acts complained of are such as to stamp the executor as dishonest, grossly inefficient or untrustworthy person whose future conduct can be expected to expose the estate to actual loss or of administration in a way not contemplated by the will.”

To the same effect was SOLOMON ACJ in Sackville West v Nourse & Anor 1925 AD 516 with reference to trustees that:

“The continuance of the trustees would prevent the trusts being properly executed or would be detrimental to the welfare of the beneficiaries.”

The test is therefore whether the acts or omissions of the executor were detrimental to the estate property and his continuance in office would prevent the proper execution of his mandate or would be against the interests of the beneficiaries of the estate.

It was an undeniable fact that the second defendant did not act to protect the interests of the estate. He was eager to assist the first defendant divest the Stand from the estate. He did not make a diligent search for the relatives of Augustine Katsiga and Gladys Mutasa. He perpetuated the lie that Gladys Mutasa had been appointed an executor. He accepted exhibit 5 without demur. He failed to act with professionalism when the plaintiff confronted him with the allegations that the first defendant was acting dishonestly. He did not alert the Master of the complaint he had received from the plaintiff. He acted with indecent haste to transfer the estate property to the first defendant. His actions undermined the estate whose only valuable asset was the Stand. Even though he had almost completed his task, he had not been discharged by the Master from office.

He would have been a ripe candidate for removal had I not been satisfied that his appointment was invalid by reason of the fraudulent misrepresentation that was perpetrated by the first defendant.

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

In Clause 2, the applicant seeks an order that the first respondent returns to the applicant's estate US$225,000= being rentals expended by the deceased from Anita June Bruk-Jackson's immovable property and US$100,344= being an equivalent of the devaluation of the immovable property. The sums were derived from what the applicant said were rentals for the period the deceased ...

The sums were derived from what the applicant said were rentals for the period the deceased took de facto administration of Anita's house to the time of his demise.

It is common cause that most of that time, 2001 to 2009 February, the official currency was the Zimbabwe dollar. If at all the deceased received rentals it would have been in that currency.

In such a claim, the applicant would have to show that the rentals were received and were not utilised for Anita June Bruk-Jackson's benefit or the benefit of her estate. This, the applicant could not show. She could not rebut the contention that proceeds from rentals were used in seeking medical care for Anita both locally and outside the country….,.

As regards the claim for devaluation, I found this astounding as I did not hear the applicant to deny that for about two years after the property came under her administration, the property was vacant and subject to adverse effects associated with a property left unoccupied for such a long time. In her calculation of the devaluation, the applicant did not seem to take account of her own role. Indeed, even the cause of action for such a claim was not clear. If at all she was seeking damages for any wrongful act it was for her to prove the nature and extent of such damages. This was not done.

In clause 3, the applicant seeks that the first respondent return 25,000= pounds and R110,000= deposited in the deceased's accounts by Anita June Bruk-Jackson.

This claim is difficult to understand taking into account the period the deposits are said to have occurred. It was a period well before Anita became mentally incapacitated. The circumstances for the deposits were privy to the deceased and Anita. Only the two could shed light on the reasons for the deposits into the deceased's account and whether the argument and counter-argument by the applicant and the first respondent vis-a vis these deposits has merit or not.

I thus find that the applicant has failed to make a case for the alternative claim as well.

Accordingly, the application is hereby dismissed, both in the main and in the alternative, with costs.

HH172-15 : TAWANDIRA MUZUNGU and OTHERS vs BLANDINA MUZUNGU and THE MASTER OF THE HIGH COURT and THE DIRECTOR OF HOUSING MARONDERA MUNICIPALITY
Ruled By: CHITAKUNYE J

The applicants approached this court seeking:- 1….,. 2….,. 3. That the first respondent be removed from the office of executrix and a neutral executor be appointed by the second respondent to administer the estate in accordance with the Administration of Estates Act [Chapter 6:01]; and 4….,. The applicants' basis for seeking the above order was that the first respondent had misrepresented to the ...

The applicants approached this court seeking:-

1….,.

2….,.

3. That the first respondent be removed from the office of executrix and a neutral executor be appointed by the second respondent to administer the estate in accordance with the Administration of Estates Act [Chapter 6:01]; and

4….,.

The applicants' basis for seeking the above order was that the first respondent had misrepresented to the Master of the High Court that she was the only surviving spouse as the late Fanuel Karimanjonda Muzungu had divorced his first wife, Laurenta Muzungu, after which he had proceeded to marry her. She also misrepresented that as at the time of the demise of the late Fanuel Karimanjonda Muzungu she had been living at the property in question as her matrimonial home when that was not so. Through her misrepresentation she was appointed executrix and proceeded to administer the estate without the knowledge and participation of the applicants as family members and beneficiaries in the estate. The applicants are in fact alleging fraudulent conduct on the part of the first respondent in the process of seeking appointment as executrix and in the manner she administered the estate.

The first respondent opposed the application.

In her opposition, she contended that the property in issue had been acquired by the late Fanuel Karimanjonda Muzungu and herself. It is pertinent to note that in her opposition she does not deny that the late Fanuel Karimanjonda Muzungu was in fact married to two wives and this was the situation at the time of his demise. It thus follows the first respondent was not candid with the Master of the High Court when she represented that the late Fanuel had divorced his first wife. It is also apparent that in response to allegations of misrepresentation the first respondent merely alluded to the fact that she advertised the estate's first and final distribution account and no one raised objections to it. There is no denial that she was appointed executrix as a result of a misrepresentation and that she deliberately left out the applicants in her administration of the estate. She in fact did not deny that in the registration and administration of the estate she used her daughter's Harare address and not the family address in Marondera where she alleged she was residing or the rural home address….,.

The Master of the High Court submitted a report in terms of Rule 248 of the High Court Rules, 1971. In that report the Master virtually confirms that the first respondent misrepresented to him leading to the appointment of the first respondent as executrix dative…,. The Master confirmed that the first respondent declared herself as the only surviving spouse as at the time of the late Fanuel Karimanjonda Muzungu's death when, as he subsequently learnt, there were two wives who survived the deceased.

It is also apparent, as alleged by the applicants, that the first respondent only provided names of her daughter and her other relatives not well known to the applicants as relatives to be invited for an edict meeting. She thus deliberately left out the applicants….,.

Section 68B of the Administration of Estates Act enjoins the Master of the High Court to summon the deceased person's family, or such members of the family as are readily available, for the purposes of appointing a person to be the executor of a deceased person's estate. The Master would, to a large extent, depend on the information provided by the person or persons who would have come to register. If, therefore, such person does not provide the correct information, or deliberately conceals the true state of the deceased's family, the Master of the High Court will invite those persons he has been advised of and appoint an executor therefrom. The Master, in his report, in effect confirms the fraudulent conduct of the first respondent.

Despite the findings by the Master of the High Court, on the conduct of the first respondent, the Master did not proceed to act in terms of section 117 of the Administration of Estates Act on the removal of an executor. That should, however, not bar this court from proceeding with the removal where, as alluded to above, the ground advanced is one of fraud. Under common law, this court has inherent jurisdiction to remove an executrix. See Katirawu v Katirawu Others 2007 (2) ZLR 64 (H).

The appointment, having been influenced by the fraudulent conduct of the first respondent, cannot stand.

The first respondent's ill-conduct did not end there.

She proceeded to administer the estate without consulting the other beneficiaries. Section 68D(2) of the Administration of Estates Act mandates the executor to consult the deceased's family and beneficiaries. That subsection states that:-

“When drawing up a plan in terms of subsection (1), an executor shall -

(a) Pay due regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and

(b) So far as is practicable, consult the deceased person's family and the beneficiaries and endeavour to obtain the beneficiaries' agreement to it.”

In casu, the executrix, instead of consulting the late Fanuel Karimanjonda Muzungu's family in its polygamous nature, deliberately avoided the applicants who are children from the first wife and so are beneficiaries in the estate.

I am of the view that the first respondent's conduct cannot be condoned….,. The first respondent has shown herself not to be an honest and worthy executrix. She has certainly put her selfish interests above those of the estate. She cannot be an executrix in this estate. As a spouse, she is a beneficiary and should be duly awarded her entitlement in terms of the law once the estate has been properly administered.

The second respondent must appoint an independent executor to administer the estate….,.

1….,.

2….,.

3. The appointment of the first respondent as Executrix Dative in the Estate late Fanuel Karimanjonda Muzungu be and is hereby set aside.

4. The second respondent is hereby ordered to appoint an independent executor to administer the above estate in terms of the law.

SC133-19 : EGA SANSOLE N.O. and CECILIA NEHWATI and THE ASSISTANT MASTER - HIGH COURT vs CHARLES NCUBE and ANNE NCUBE and NEGOLOBELO NEHWATI and MANO NEHWATI
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MALABA JA

The deceased signed and executed a Will on 14 December 1990. The Will was prepared by the first appellant who is a legal practitioner and a former friend of the deceased. In terms of the Will, the first appellant is the executor of the deceased's estate and the second appellant is the main beneficiary. The second appellant is ...

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

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.FACTSThe ...

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 sub tenant 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 sub-letting 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 Administration of Estates 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 [Chapter 7:06].

It found that the appellant had no direct or substantial interest in the administration of the estate of the late Sushila Natverial Naik, 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 the late Sushila Natverial Naik.

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 the late Sushila Natverial Naik

Before this Court, it was the appellant's contention that the second respondent illegally represented the estate of the late Sushila Natverial Naik, 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 Natverial Naik 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 High Court Act [Chapter 7:06] 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…,:-

“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…,:

“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)…, 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).”…,.

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 sub-tenant 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 sub letting 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 sub-letting 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)…, where MAKARAU JP…, 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.”…,.

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.

View Appeal
HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

After considering the papers filed of record, inclusive of heads of argument and hearing oral evidence from the applicant and the respondents' counsels, I gave oral reasons for my disposition; I indicated that written reasons would be availed in due course on why I effectively dismissed the application with costs on attorney client scale.

The reasons for my disposition are captioned herein.

The applicant sought a declaratory order in terms of section 14 of the High Court Act. The applicant effectively sought the nullification of the appointment of Joytindra Natverial Naik as an executor testamentary of the Estate of Shushila Natverial Naik.

The first, second, and third respondents opposed the application and raised the following points in limine;

1. Locus standi.

2. Wrong procedure.

The applicant was a tenant at the property falling under the deceased estate as represented by the first respondent. The second and third respondents are interested parties.

The applicant, in this case, seeks to impugn the administration of the estate of the late Sushila Natverial Naik and appointment of its executor.

The question is; in what capacity does the applicant, who is neither a relative or beneficiary of the estate, seek a declaratory order invalidating the appointment of an executor testamentary of the estate in question?

Section 14 of the High Court Act, under which the application has been brought, is instructive. It states;

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future, or contigent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

It is apparent there is a condition precedent to bringing an application for a declaratory order. The applicant must be an interested person having a substantial and direct interest in the matter and such interest must relate to an existing, future, or contingent legal right. See Recoy Investments (Pvt) Ltd v Tarcon 2011 (2) ZLR 65 (H); Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H).

The legislature's intention was surely not to create an absurdity where anyone in the abstract would seek a declaratur.

The applicant, a subtenant to the premises, appears to be bringing the application in anticipation of eviction which he intends to oppose.

The intention to resist eviction in the premises does not constitute a legal right to seek a declaratur in the manner sought by the applicant. There is no evidence to show the alienated right on the part of the application warrants the declaratory order sought. It is apparent from the applicant's submission that the applicant has no existing, future, or contingent right. The applicant is an illegal subtenant who happens to be in occupation by virtue of unsanctioned sub-tenancy in breach of a lease agreement. The applicant has no rights arising which ought to be protected by a declaratur.

It is settled that a legal right, and not the factual basis upon which a right may be founded, ought to be shown.

See Movement for Democratic Change v President of the Republic of Zimbabwe and Others HC129/05; Electrical Contractors Association (South Africa) and Another v Building Industries Federation (2) SA 1980 S 16 wherein Nicholas J emphasised that a person seeking a declaration of rights must set forth his contention as to what the alleged right is.

In RK Footwear Manufacturers (Pvt) Ltd v Boka Book Sales (Pvt) Ltd 1986 (2) ZLR 209 Sandura JP…, had occasion to identify two considerations that a court had to take into consideration in determining whether or not to issue a declaratory order;

(i) He stated that the court had to consider whether the applicant was an interested person in an existing, future, or contingent right or obligation; and

(ii) Secondly, whether the case was a proper one for the court to exercise its discretion.

In RK Footwear Manufacturers (Pvt) Ltd v Boka Book Sales (Pvt) Ltd 1986 (2) ZLR 209, the court was required to issue a declaratory order involving the rights of a lessor to evict a tenant at a future date. The judge came to the conclusion that the matter before him was not a proper one for him to exercise his discretion as, at the time of the hearing of the matter, there was no good and sufficient cause for requiring the order.

In casu, the applicant is seeking a declaratory order in a matter where he has no legal right to the estate. Further, the applicant is seeking the court to assist him to continue occupying the premises in question illegally given the sub tenancy was specifically prohibited by the lease agreement between Gold-Pack Investments and Sushila Natverial Naik.

The applicant is clearly not an interested party in the administration of the Estate Late Sushila Natverial Naik. There is no basis for the applicant bringing the action before the court as he clearly has no locus standi.

It is evident that the applicant appears bent on abusing court process to frustrate the administration of an estate to which he is not an interested party. My position is fortified by the fact that there is an extant Magistrate Court order for eviction of Clintvest Investments (Pvt) Ltd and all those claiming occupation through it. These would include the applicant - an illegal subtenant.

In the case of Newton Elliot Dongo v Bobnik Investments (Pvt) Ltd and Messenger of Court HH384-17 this court had occasion to deal with the issue of eviction of the applicant as a subtenant from the same premises, 107 Salisbury Township also known as Number 12 Harare Street, Harare which constitutes the deceased estate represented by the first respondent. In that case, Charewa J ably dismissed the applicant's urgent application for stay of execution on the basis of lack of urgency and locus standi. She stated that the applicant was a subtenant to and, in fact, illegal tenant thus there was no nexus with the first respondent. She, in conclusion, stated that since there was no nexus between the estate late Sushila Natverial Naik and the applicant, there can be no direct and legal interests in the administration of the estate by the applicant.

At the back drop to such a finding and clear explanation of lack of locus standi it is clear the applicant is simply taking a gamble with the courts in a matter where he has no legal interest entitling him to the declaratory order sought.

The court has to express its displeasure on conduct which borders on an abuse of court process, moreso in situation where the litigant ignores clear directions from the court.

The applicant, having no locus standi, improperly sought a declarator in a matter which he has no interest, existing or future, or contingent right or obligation. The court will express its displeasure on abuse of court process by awarding costs on a higher scale. It appears the applicant, in a lawless manner, seems to feel justified to occupy the deceased estate property simply because the late is Indian and the executor appointed is Indian. Such conduct is unacceptable in a progressive democratic society. The requirements for a declaratur have not been met given the lack of legal right on the part of the applicant.

The application is accordingly dismissed with costs on an attorney client scale.

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

This is an application in terms of section 52(9)(i) of the Administration of Estates Act [Chapter 6:01]....,.The facts giving rise to this matter which are not in dispute are as follows;The late Victor Doit Mujaji died on 10 June 1998 (the deceased). He is survived by the first defendant, whom ...

This is an application in terms of section 52(9)(i) of the Administration of Estates Act [Chapter 6:01]....,.

The facts giving rise to this matter which are not in dispute are as follows;

The late Victor Doit Mujaji died on 10 June 1998 (the deceased). He is survived by the first defendant, whom he had married in terms of customary law in 1996, and eight children.

At the time of his death he owned three motor vehicles, an immovable property where he resided, and household goods.

Prior to his death, the deceased instructed a legal practitioner to draw up a will. He however died before he had signed it. For convenience, I will refer to it as a draft will in this judgment.

At his funeral the deceased's legal practitioner, Mr Warara, read the draft will to the gathering. Family members agreed to adopt the draft will for the purpose of distributing the estate.

At an edict meeting attended by members of the family, and the first defendant, the plaintiff was appointed as executor of the deceased's estate.

A first and final distribution account was lodged with the second defendant awarding the deceased's immovable property to his four children in equal and undivided shares.

The first defendant lodged an objection to the account as she was of the view that she was entitled to a share in the immovable property.

The second defendant, acting in terms of section 52 of the Administration of Estates Act [Chapter 6:01] directed that the estate should be distributed by giving the first defendant 50% and the four minor children 12,5% share in the immovable property as the deceased had died interstate.

The second defendant proceeded to issue new Letters of Administration in favour of the first defendant in the same estate and authorizing her to transfer the property into her name and the names of the minor children in the shares already stated.

It is against the directions of the second respondent that the plaintiff complains and has lodged this claim in order to have them set aside.

The plaintiff, in his claim, seeks the following order:

(a) The appointment of the first respondent, as executor dative, on 5 of April 2002, be and is hereby declared null and void.

(b) The plaintiff is hereby declared executor dative of the estate late Doit Victor Mujaji....,.

The plaintiff also alleged that the appointment of the first defendant, as executor, after he had been so appointed was unlawful....,.

The second defendant..., erred in giving the first defendant Letters of Administration in circumstances where he had already appointed the plaintiff as executor.

It is apparent, from a reading of the Administration of Estates Act, that once an executor has been appointed another person cannot be appointed at the same time.

In the event that the Master was dissatisfied with the manner in which the plaintiff was administering the estate his remedy was to have the plaintiff removed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] before appointing the first respondent.

It seems to me that the first defendant's appointment cannot stand as it is unlawful. The plaintiff remains as executor until he has been lawfully removed.

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

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 ...

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HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 ...

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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

If there are any challenges with the executrix the proper procedure is to first seek his removal from office.An executrix cannot be removed from office or incapacitated from dealing with any asset of the estate by a purported appointment of an executor dative.It must be acknowledged, that, courts do not ...

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).

The facts upon which the applicant bases this application are as follows:

The respondents are the surviving spouses of the late Willas Mukati Moyo (the deceased). The estate was registered with the Assistant Master in Gweru by the first respondent. She received a Certificate of Authority from the Assistant Master, dated 15 June 2006, which empowered her to withdraw the balance which was in a Kingdom bank Account belonging to the deceased. She was also authorized to take transfer of a residential Stand known as Photo Studio, Stand Number 822 Gweru Township and a Mazda B1800 Registration Number 352-551G.

Following the registration of the estate, the applicant received complaints that the first respondent was benefiting in the estate to the exclusion of the other beneficiaries.

It was also common cause that the first respondent was operating a lodge as a business on the property and was receiving all the proceeds from the business for her own use.

There was also a complaint that she was disposing of the deceased's movable assets.

The applicant, on 31 August 2007, called a meeting at his office in order to resolve the dispute.

Following this meeting, the applicant decided that the first respondent should be removed as executor and approached this court, by way of chamber application, in accordance with the provisions of section 117 of the Administration of Estates Act.

The first respondent opposed the application, and, although such matters are normally dealt with by a judge in chambers, it was directed that the matter be set down on the opposed roll.

In her opposing affidavit, the first respondent raises the point that the application is defective as it cites her in her official capacity when she should have been cited in her personal capacity.

On the merits, she denies, that, at the time of the deceased's death, the second and third respondents were still married to the deceased. She states that the second respondent left the matrimonial home in 1993 and the third respondent in 1998. They did not attend the deceased's funeral and it was only after the estate was registered that she was approached by the respondents with proof of their existing marriages. She thus submits that her conduct is above reproach.

She further states, that, her appointment was carried out by the Assistant Master in accordance with the Administration of Estates Act, and, thus, there is no basis for this application.

The first respondent also states, that, the business of the lodge, which is being conducted on the premises, was established by her after the death of the deceased. She states that she established the business on her own in order to maintain herself following the death of the deceased. She denied that she had disposed of any movable property of the estate. She further denied that she was benefiting from the estate to the exclusion of the other beneficiaries. She further states that the only dispute between her and the second and third respondents is over her vacation of the matrimonial home and her removal as executor of the deceased's estate.

At the hearing, counsel for the first respondent, in argument in respect to the preliminary point raised, submitted that the applicant had wrongly cited the first respondent in her official capacity. He further submitted, that, on this basis the application should be dismissed.

He relied on "The Law and Practice of the Administration of Estates" by MEYEROWITZ, 5th ed…, where the learned author states as follows:

"An application for removal of an executor must be brought against him personally and not in his capacity as executor…,."

In the case of McNamee and Another v Executors Estate McNamee 1913 NPD 428 this issue was determined by the South African courts. In dealing with an exception which had been filed to the declaration on the basis that the executors had not been cited in their personal capacities, the court stated…, as follows:

"It will be seen, that, the defendants, as executors and trustees, are not called upon in any way to restate or modify their accounts. The conclusions of the summons are all personal to themselves as individuals - removal from office, forfeiture, and refund of commissions and fees: but, as the action is laid out against them in their representative capacity, it is an action against the estate and not against the individual who alone can satisfy the judgment."

Whilst the rationale for the decision is beyond reproach, it should be noted the Zimbabwean courts do not appear to have made a determination on the matter.

The various cases which have been brought before the court, for the removal of an executor, whether based on the common law or statute have cited the executor in both their official capacity and personal capacity: see Bonma v Meaker N.O. & Ors 1973 (2) RLR 16 (R); Vermaak & Anor v Nish N.O. HH166-88; and Van Niekerk N.O. v Master of the High Court 1996 (2) ZLR 105.

These should be contrasted with cases, also from this court, where the executor was not cited in his official capacity: see Master of the High Court v Ferreira & Anor 1965 RLR 341 (R); Siziba v Siziba & Anor HB25-04; and Katirawu v Katirawu & Ors HH58-07.

In this case, although the point has been raised, it was not fully argued by the parties.

In my view, it is not necessary to make a determination of the point in this case as the applicant is alleging that the respondent was appointed through an error of his office rather than any misconduct on her part.

The citation of the respondent would not affect the relief being sought in this matter as all that is being claimed is her removal from office.

Had the applicant been claiming some other relief which would require the respondent to do certain things to satisfy the judgment, then, it would have been fatal to the application.

It seems to me, however, that the first respondent should have been cited in her personal capacity in this case....,.

I now turn to the merits of this matter.

Section 117 of the Administration of Estates Act [Chapter 6:01] provides as follows:

“117 Master may apply for removal of executor, tutor or curator from office

(1) The Master may apply to a judge in chambers for the removal of an executor, tutor or curator from his office on the ground -

(a) That he was not qualified for appointment to such office or that his appointment was for any other reason illegal; or

(b) That he has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law; or

(c) That he is mentally or physically incapable of performing satisfactorily his duties; or

(d) That, in his opinion, such person is no longer suitable to hold such office;
and the judge may, upon such application, remove the executor, tutor or curator concerned from his office or make such other order as he sees fit.

(2) Where an executor, tutor or curator has been removed from his office, the Master shall revoke any letters of administration or confirmation, as the case may be, which have been granted to such person.”

It seems to me, that, in order for an application in terms of this provision to succeed, the applicant must establish that it falls under any one of the grounds set out in subsection (1).

In the case of Van Nierkerk NO v Master of the High Court 1996 (2) ZLR 105, the court was faced with a similar application and the court held that the removal of an executor should never be undertaken lightly. The court held, further, that, in order to justify a removal in terms of this section, the court must be satisfied that the executor had failed to perform satisfactorily any duty or requirement imposed on him by or in terms of the law.

The applicant, in this case, did not state, in his application or heads of argument, the grounds upon which he relied for the removal of the executor.

Whilst it is not fatal to the application, as it can be ascertained from the facts in the founding affidavit, I would think that it is desirable to do so.

During the hearing however, counsel for the applicant submitted that he was relying on subsection (1)(a) of the above section.

Counsel for the applicant submitted, that, the first respondent should be removed from office on the basis that her appointment was not in accordance with the law as the estate was too large to be administered summarily in terms of section 32(1) of the Administration of Estates Act.

Section 32(1) of the Administration of Estates Act provides as follows:

“(1) If any person dies whose estate is unrepresented and in so far as the same is in Zimbabwe, appear to the Master to be under the value of such amount as the Minister may specify in terms of subsection (2), the Master may -

(a) Cause such estate to be administered and distributed in accordance with by an executor dative to be by him summarily appointed for that purpose; or

(b) Dispense with the appointment of an executor dative and direct how such estate shall be administered and distributed.”

It seems to me, that, section 32(1) of the Administration of Estates Act allows the Master to deal summarily with an estate if he considers it to be a small estate. In other words, where the Master determines that the estate is a small estate, an executor is appointed without following the normal procedures incumbent upon such appointment nor is the executor required to carry out a full administration of the estate.

In this case, the Assistant Master sitting at Gweru made such an appointment.

It seems to me, however, that, in making the appointment, he failed to comply with the provisions of the Administration of Estates Act.

In deciding whether or not an estate falls within the ambit of this section, the value of the estate must be below an amount which is prescribed by the Minister from time to time by statutory instrument.

In terms of the Administration of Estates (Specified Amount) Notice 1994, published in S.I.155/94, SI155/94 the prescribed amount is $60,000. This statutory instrument has not been amended since 1994 in spite of the skyrocketing values of property in this country.

It seems to me, that, in view of the values of the property market, no estate would ever fall within the ambit of this section.

In my view, it is incumbent for the Minster to review the prescribed amount from time to time in the same manner that he reviews the value of an estate for which duty is payable.

In this way, an unnecessary burden is not placed on the Masters office, and the public, by being obliged to provide full administration in what is essentially a small estate which would not require full administration.

The estate before me involves an immovable property in the City of Gweru. It has been described as a residential property with a business of a lodge being conducted on its premises. It also involves a motor vehicle and some cash.

Whilst no value of this estate has been given in the papers before me, it is quite apparent that such an estate, as described, could not have been valued below $60,000 - even in 2006 when it was registered.

Immovable property values at that time were already in the million dollar range.

It seems to me that such an estate cannot be defined as a small estate. The Assistant Master should therefore not have proceeded in terms of section 32 of the Administration of Estates Act.

It was submitted, on behalf of the first respondent, that, at the relevant time, there was a circular from the applicant directing that all estates dealing with customary law marriages should be dealt with in terms of section 32 of the Administration of Estates Act.

Unfortunately, the circular was not placed before the court so that the court could determine the meaning of the circular for itself.

It however seems to me, that, even if such a circular does exist, it would not be in accordance with section 32 of the of the Administration of Estates Act.

The appointment of the first respondent, as executor of the estate of the late Willas Mukati Moyo, thus, in my view, was unlawful.

In the result, I make the following order:

1. The first respondent be and is hereby removed as executor dative of the Estate of the Late Willas Mukati Moyo.

2. The Certificate of Authority granted to the first respondent, on 15 July 2006, is hereby revoked.

3. That there be no order as to costs.

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1....,.

2. Whether the court a quo erred in granting an interim interdict prohibiting the appellant from administering the deceased estate....,.

On the merits, counsel for the appellant submitted, in the main, that, the court a quo dealt with an application for an interdict which was based on a past infraction which the appellant had corrected.

In his view, the appellant's decision to issue an interim liquidation account dealing only with the Lamborghini motor vehicle and to attempt to release the vehicle to “Kit Kat” had been reversed following the intervention of the fourth respondent.

It was submitted further, that, the court a quo erred in granting an interdict based on what had already transpired.

Apart from that, so it was argued, there is a procedure to be followed by a person aggrieved by the decision of the Master of the High Court. The procedure was not engaged by the respondents who obviously had other remedies available to them.

In conclusion, counsel for the appellant submitted, that, there were triable issues which could not be resolved on the affidavit and documents filed by the parties.

In counsel's view, the circumstances relating to the drafting of the unsigned will, its acceptance by the respondents themselves at the edict meeting, and the allegations of duress were all disputed facts which the court could not resolve on the papers.

In response, counsel for the respondents maintained, that, the respondents made a case for the grant of an interim interdict which is the sole subject of this appeal. Until such time that the validity of the unsigned will has been interrogated, the court a quo had to interdict its use in the administration of the estate.

He craved the dismissal of the appeal with costs on the admonitory scale....,.

On the merits, I do not agree with counsel for the appellant, that, the judge a quo granted an interdict solely on the past infraction of the attempted release of the Lamborghini motor vehicle. Of course, that conduct served as a sharp warning of what the appellant was capable of and the need to protect the deceased estate.

However, this is a case in which an unsigned document, purportedly prepared on the instructions of the deceased, was being used to administer a huge estate straddling the borders of three countries.

Its authenticity has to be investigated.

The beneficiaries questioned its origins and the involvement of the appellant as executrix of the estate. If indeed the appellant was administering the estate for the benefit of none other than the beneficiaries, surely, she should not have any problems submitting herself to judicial scrutiny.

The fact that the respondents initially accepted the unsigned document as the Will and the appointment of the appellant as executrix is of no moment in the inquiry on the authenticity and validity of that document.

This is not a “touch-is-a-move” game of draft in which the stakes turn against the player once he or she touches the lid. Where new facts have emerged, the court should be engaged to solve the issues.

I also do not agree that there was another effective alternative remedy available to the respondents other than interdicting the administration of the estate until the validity of the unsigned will has been dealt with.

Accordingly, the judge a quo cannot be faulted for finding, that, all the requirements for the grant of a temporary interdict were satisfied.

The appeal has no merit.

Regarding the question of costs, no foundation was laid for an award of costs on an admonitory scale of legal practitioner and client. However, there is no reason why costs should not follow the result as usual.

It is for these reasons that this Court dismissed the appeal with costs.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision.

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.

(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.

(4) The requirements of an interim interdict have not been met; and

(5) There is no competent cause of action.

In my view, points 3, 4 and 5 touch on the merits of the case...,.

On the merits, the first respondent made the following submissions:

The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.

She denied refusing to give a copy of the Will to the applicants as alleged.

The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.

The Lamborghini motor vehicle has not been disposed of.

Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.

The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.

The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.

The applicants have various remedies at their disposal.

They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.

In their heads of arguments, the applicants made the following submissions:

The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.

The balance of convenience favours the applicants.

The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.

The first respondent made the following submissions on the merits in her heads of argument:

The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.

The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.

The applicants have failed to exhaust their domestic remedies.

The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):

(a) A prima facie right, though open to doubt;

(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..

I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.

I find comfort, however, in the fact that the right referred to is prima facie only.

I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.

It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.

Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.

That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.

Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”

The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.

The acceptance of any document that does not meet all the requirements is not a walk in the park.

In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.

This is what I would refer to as 'live' issues that need to be considered.

The applicants, in other words, have a reasonably arguable case, prima facie, on review.

The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.

The whole basis of the inquiry is to arrive at the truth and rule out fraud.

If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.

The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.

The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?

What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?

The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;

“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”

And yet, the first respondent went on to advertise the estate account as lying for inspection.

According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.

In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.

Their apprehension in the face of the first respondent's admitted conduct is valid.

The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.

The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.

The balance of convenience, in my view, favours the applicants who are beneficiaries.

Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.

Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.

The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.

On costs, I do not see anything warranting the award of costs at this interim stage.

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.

This may entail having the return date expedited.

For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:

1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.

2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.

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Law Portal
Zimbabwe

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

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

HH218-10 : KENIAS MUTYASIRA vs BARBRA GONYORA
Ruled By: CHITAKUNYE J

HB88-11 : DEBORAH NGWENYA and NDABEZINHLE NGWENYA and NQOBIZITHA NGWENYA and NOMATHAMSANQA NGWENYA vs GLORY MPOFU N.O. and SIPHATHISIWE NCUBE and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: KAMOCHA J

HH192-14 : LOVENESS MASEKO vs ESTATE LATE PHILLIP MUNEMO and PROSPER MUNEMO and EVANS MUNEMO and PORTIA MUNEMO and CHITUNGWIZA MUNICIPALITY and MASTER OF HIGH COURT
Ruled By: MAKONI J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH172-15 : TAWANDIRA MUZUNGU and OTHERS vs BLANDINA MUZUNGU and THE MASTER OF THE HIGH COURT and THE DIRECTOR OF HOUSING MARONDERA MUNICIPALITY
Ruled By: CHITAKUNYE J

SC133-19 : EGA SANSOLE N.O. and CECILIA NEHWATI and THE ASSISTANT MASTER - HIGH COURT vs CHARLES NCUBE and ANNE NCUBE and NEGOLOBELO NEHWATI and MANO NEHWATI
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MALABA JA

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

View Appeal
HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

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

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

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Law Portal Zimbabwe

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

Appealed SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.) Ruled By: CHIWESHE JP

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY Ruled By: CHITAKUNYE J

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA Ruled By: PATEL J

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT Ruled By: GUVAVA J

HH218-10 : KENIAS MUTYASIRA vs BARBRA GONYORA Ruled By: CHITAKUNYE J

HB88-11 : DEBORAH NGWENYA and NDABEZINHLE NGWENYA and NQOBIZITHA NGWENYA and NOMATHAMSANQA NGWENYA vs GLORY MPOFU N.O. and SIPHATHISIWE NCUBE and ASSISTANT MASTER OF THE HIGH COURT Ruled By: KAMOCHA J

HH192-14 : LOVENESS MASEKO vs ESTATE LATE PHILLIP MUNEMO and PROSPER MUNEMO and EVANS MUNEMO and PORTIA MUNEMO and CHITUNGWIZA MUNICIPALITY and MASTER OF HIGH COURT Ruled By: MAKONI J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: TSANGA J

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS Ruled By: KUDYA J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH172-15 : TAWANDIRA MUZUNGU and OTHERS vs BLANDINA MUZUNGU and THE MASTER OF THE HIGH COURT and THE DIRECTOR OF HOUSING MARONDERA MUNICIPALITY Ruled By: CHITAKUNYE J

SC133-19 : EGA SANSOLE N.O. and CECILIA NEHWATI and THE ASSISTANT MASTER - HIGH COURT vs CHARLES NCUBE and ANNE NCUBE and NEGOLOBELO NEHWATI and MANO NEHWATI Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MALABA JA

Appealed SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

View Appeal HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS Ruled By: MWAYERA J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT Ruled By: GUVAVA J

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

View Appeal HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT Ruled By: KUDYA J

View Appeal SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA Ruled By: GUVAVA J

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

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Zimbabwe

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH113-10 : KUDZANAYI KATSANDE vs RAZMOND KATSANDE (as executor Estate Norman Katsande) and WILFRED MAGWAZA and MASTER OF THE HIGH COURT N.O and CHITUNGWIZA MUNICIPALITY
Ruled By: CHITAKUNYE J

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

HH218-10 : KENIAS MUTYASIRA vs BARBRA GONYORA
Ruled By: CHITAKUNYE J

HB88-11 : DEBORAH NGWENYA and NDABEZINHLE NGWENYA and NQOBIZITHA NGWENYA and NOMATHAMSANQA NGWENYA vs GLORY MPOFU N.O. and SIPHATHISIWE NCUBE and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: KAMOCHA J

HH192-14 : LOVENESS MASEKO vs ESTATE LATE PHILLIP MUNEMO and PROSPER MUNEMO and EVANS MUNEMO and PORTIA MUNEMO and CHITUNGWIZA MUNICIPALITY and MASTER OF HIGH COURT
Ruled By: MAKONI J

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH172-15 : TAWANDIRA MUZUNGU and OTHERS vs BLANDINA MUZUNGU and THE MASTER OF THE HIGH COURT and THE DIRECTOR OF HOUSING MARONDERA MUNICIPALITY
Ruled By: CHITAKUNYE J

SC133-19 : EGA SANSOLE N.O. and CECILIA NEHWATI and THE ASSISTANT MASTER - HIGH COURT vs CHARLES NCUBE and ANNE NCUBE and NEGOLOBELO NEHWATI and MANO NEHWATI
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MALABA JA

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

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HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

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

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HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

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HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J