MATHONSI
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 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 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 Zinyengere's lawyers in which she demanded a payment
of $48,230.00 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.
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.
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 realised 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 forth 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.
I
must say that the appellant's grounds of appeal could have been
couched in more elegant terms. As it is, they are all argumentative
in nature. They contain arguments in support of the appeal.
In
terms of Rule 44(1) of the Supreme Court Rules, 2018, grounds of
appeal must be clear and concise. The court must not be made to guess
what it is the appellant is challenging. It needs no repeating that
grounds of appeal must be clearly set out to enable the respondents
and indeed the court, to be fully informed of the case of the
appellant: see Chikura
N.O & Anor vs Al Sham's Global BVI Ltd SC17/17.
Be
that as it may, this is not a case in which the grounds are
completely defective as to attract the striking off of the appeal
from the roll.
ISSUES
FOR DETERMINATION
Although
there are six grounds of appeal, only 2 issues commend themselves for
determination in this appeal. They are:
1.
Whether the court a
quo
erred in finding that the application was urgent.
2.
Whether the court a
quo
erred in granting an interim interdict prohibiting the appellant from
administering the deceased estate.
SUBMISSIONS
ON APPEAL
Mr
Hashiti
for the appellant initially anchored his argument solely on two
technicalities. He submitted firstly, that the form used by the
respondents in approaching the court a
quo
was a new invention of their own which is fatally defective. The
respondents combined an urgent chamber application with a review
application, and in counsel's view, this rendered the whole
application irregular. He entreated this Court, bearing in mind that
the issue was not covered in the grounds of appeal, to invoke its
review powers in terms of section 25 of the Supreme Court Act
[Chapter
7:13]
to set aside the proceedings on that basis.
In
response, Mr Ushewokunze
for the respondents submitted that the issue of the form used was not
raised by the appellant in the court a
quo.
It can therefore not be taken for the first time on appeal regard
being had that this Court is not one of first instance.
In
addition, so counsel continued, the court a
quo
gave the reasons why it allowed the procedure adopted by the
respondents. The appellant filed her appeal on 12 March 2021 to which
was attached the judgment sought to be impugned. Accordingly, she had
all the time and opportunity to challenge the decision of the court a
quo
to allow the application in the form it was made.
(ii)
The second technicality raised by Mr Hashiti
relates to the non-joinder in the application of other beneficiaries
of the unsigned will who also have an interest in the dispute. He did
not mention them by name but a reading of the document shows that,
other than the deceased's family members, a person called “Kit
Kat” is mentioned as a beneficiary.
Again,
as correctly observed by counsel for the respondents, the issue of
non-joinder was not taken a
quo
wherein the proceedings remain unterminated. The court a
quo
still has to pronounce itself on the return date of the provisional
order it granted. As with the issue of the form used, the non-joinder
is only raised in the heads of argument and not in the grounds of
appeal.
On
the merits, Mr Hashiti
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. The
procedure was not engaged by the respondents who obviously had other
remedies available to them.
In
conclusion, Mr Hashiti
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, Mr Ushewokunze
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.
ANALYSIS
The
question of urgency cannot possibly be a live issue on appeal. This
is so because the judge a
quo
was imbued with judicial discretion whether to hear the matter as
urgent or not. Having exercised her discretion in favour of the
respondents given the appellant's conduct of disposing of the
property of the estate without following the proper liquidation
process, that became water under the bridge.
Without
satisfying the requirements for interference, on appeal, with the
exercise of discretion, the appellant cannot pursue the question of
urgency before this Court.
Happily
Mr Hashiti
for the appellant did not motivate that issue at all before this
Court.
Regarding
the form in which the application was made, there is no doubt that
combining an urgent application with a review application would not
meet the requirements of the rules of the court a
quo.
A review application is made in terms of Order 33 and should be by
court application.
However
rules are made for the benefit of the court. The court a
quo
had power in terms of Rule 4C of the then applicable rules to condone
a departure from the rules. It did just that. On that issue the court
commenced its judgment by stating:
“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 application.”
Indeed
to illustrate that the judge a
quo
was conscious of the nature of the case, as part of the interim
relief she granted, she added paragraph 4:
“4.
The Registrar of the High Court of Zimbabwe at Harare is directed to
expedite the return date (of) hearing.
The
Registrar is directed to bring this judgment to the attention of the
second respondent (The Master).”
In
my view the conduct of the judge a
quo
was informed by the exigencies of the matter and the prevailing Covid
19 conditions which inhibited the filing of court process. She
properly applied her mind and excused a departure from the court
rules. Nothing whatsoever, has been said to suggest that this was an
unreasonable or indeed irrational exercise of judicial discretion.
The
rules of court are designed for the benefit of the court and the
proper administration of justice. As has been said, they are “not
laws of Medes and Persians”. See Scottish
Rhodesian Ltd v Honiball
1973
(2) SA 747 (R) at p748.
The
rules are just the court's tools fashioned for the court's own
use and are not an end in themselves to be observed for their own
sake. See Federated
Trust Ltd v Botha
1978 (3) SA 645 at 654.
In
my view, there is therefore no basis for interfering with the manner
in which the judge a
quo
applied the rules. Equally, there is no legal foundation for invoking
section 25 of the Supreme Court Act [Chapter
7:13]
in the circumstances of this case.
An
attempt was also made on behalf of the appellant to introduce a new
case on appeal.
In
heads of argument filed for the appellant and in submissions made by
counsel the issue of non-joinder of other interested parties was
raised for the first time. It is an issue which was neither pleaded
nor taken a
quo.
More importantly, it was not canvassed in the grounds of appeal.
This
Court has repeatedly discouraged litigants from treating it as a
court of first instance because it is not.
A
litigant who has not made a case in the court below will not be
allowed to smuggle such case in on appeal.
As
stated in Kearns
v Walter Enterprises
SC160/90, the court will not set a precedent for litigants to treat
the Supreme Court as a second court of first instance where issues
can be tried afresh.
See
aslo Mutasa
& Anor v The Registrar of the Supreme Court & Ors
SC27/18.
Accordingly,
the appellant is restricted to its case as pleaded, a
quo
and in this Court.
On
the merits, I do not agree with Mr Hashiti
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.
MAKONI
JA: I
agree
MWAYERA
JA: I
agree
Rufu-Makoni
Legal Practitioners,
appellant's
legal practitioners
Ushewokunze
Attorneys,
respondent's legal practitioners
