Urgent
Chamber Application
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 applicant 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 second 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 and 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 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 is 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:
2.1
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
2.2
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 and as a
result, I will deal with points one and two only.
The
test for what constitutes urgency has been set out in a plethora of
cases with the oft cited case of Kuvarega v Registrar General, 1998
(1) ZLR 188 (H) being the locus classicus.
In
my view, the matter placed before the court is urgent regard
especially being had to the events that are taking place, more
specifically the rush to conclude administration of part of the
estate of the deceased and the placing of an advert for an interim
distribution account in both the government gazette and a newspaper.
The adverts are legal processes and failure to act on them has legal
consequences.
Whilst
it is accepted that in terms of section 8(6) of the Wills Act
[Chapter 6:06] any person aggrieved by the acceptance of a document
that does not meet all the formalities of a will has 30 days within
which to appeal, what the applicants seek is a review which has
different considerations from an appeal.
The
first respondent visited the jurisdictions of Botswana and South
Africa on the strength of the unsigned will that had been accepted by
the second respondent for purposes of administration. The will itself
specifically mentions Zimbabwe, Botswana and South Africa as
countries in which the deceased had assets.
The
first respondent has commenced litigation in the High Court of the
Republic of Botswana. In that matter her capacity is said to be
administrator of the estate of the late Genius Kadungure. She is
suing one Leo Chiweshe. Part of the relief that she seeks is that she
be declared the legally nominated executor of the estate of the late
Genius Kadungure.
In
view of the pending matter, this court will have no jurisdiction to
make an order interdicting the first respondent as that will be
tantamount to interfering with ongoing litigation in the Botswana
jurisdiction.
Seemingly,
nothing has been done in relation to the estate of the deceased in
the Republic of South Africa.
The
Administration of Estates Act number 66/65 in that country (the act)
deals with administration of deceased estates including those of
foreigners who leave assets upon death.
In
terms of section 13(1) of the act, no person may deal with assets of
a deceased left in the republic whether s/he was ordinarily resident
unless authorised by the Master of the High Court in South Africa.
The
letters of administration received by the 1st respondent in Zimbabwe
do not entitle her to deal with the assets of the deceased in South
Africa unless she is authorised by the Master in that country.
In
terms of section 4(1)(b) of the act, any Master to whom an
application is made to grant letters of executorship or to sign or
seal any such letters already granted in respect of an estate has
jurisdiction in a foreign estate.
Section
22(2)(c) states that a person who applies for letters of appointment
issued in another state must lodge a declaration under oath with the
Master that issues letters of executorship. S/he must state that such
have not already been granted or signed and sealed by any other
Master in the Republic.
There
are special provisions relating to what are known as 'proclaimed'
states of which Zimbabwe is one of them.
This
is in terms of section 40 of the Administration of Estates Act, 24 of
1913.
In
terms of section 21, the Master may instead of issuing letters of
executorship for estates of foreigners, merely sign and seal the
letters of appointment already issued in the foreign state.
The
first respondent may therefore follow such a course of action.
In
my view, should the court be inclined to grant the interdict, there
will be nothing amiss in interdicting the first respondent from
presenting the letters of administration granted to her in Zimbabwe
in the Republic of South Africa pending the return date.
The
simple reason is that the applicants are seeking the revocation of
the letters of administration issued to the first respondent under DR
no.1771/20.
The
outcome of the review process will therefore determine how the
administration of the estate in the Republic of South Africa in
relation to the assets left by the deceased will proceed.
In
heads of argument filed of record, the first respondent through her
legal practitioner further raised a preliminary point that there was
material non-disclosure.
The
applicants did not inform the court that they signed affidavits under
oath confirming that they had no objections to the unsigned document
being taken as the deceased's last will and testament. Reference
was made to the oft cited case of Graspeak Investments (Pvt) Ltd v
Delta Ops (Pvt) Ltd and anor, 2001 (2) ZLR 551 (H).
The
applicants to the contrary were very candid with the court that they
accepted the document as a will and recommended the appointment of
the first respondent as executor. Their bone of contention is that
they were unduly influenced by the first respondent.
The
points in limine are therefore dismissed.
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 meet all the requirements of 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 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 at 227 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) at 688.
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 (as she then was)
on p243F 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 1st 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 (my emphasis) 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 applicant, 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 coordinated 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 unfiled
executors 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 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 1st respondent be and is hereby interdicted from administering
the estate of the late Genius Kadungure under DR No 1771/20.
2.
The 2nd 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
1st respondent.
3.
The 1st 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.
Ushewokunze
Law Chambers, applicants legal practitioners
Rufu-Makoni,
1st respondent's legal practitioners
