The
claimant made effort to be paid his dues as curator bonis and as executor dative in terms of the judgment by KUDYA J. Such
effort was resisted by the respondent who contended that he could only be paid
when the estate had been wound up. In this regard there is a letter ...
The
claimant made effort to be paid his dues as curator bonis and as executor dative in terms of the judgment by KUDYA J. Such
effort was resisted by the respondent who contended that he could only be paid
when the estate had been wound up. In this regard there is a letter by the
respondent's legal practitioners to the claimant dated June 15, 2007 in which
they stated in paragraph 2 thereof, inter alia, that -
“Your
claim for costs will be dealt with during the ordinary course of winding up of
the estate.”
On
29 June 2007 the respondent's legal practitioners sent another letter to the
claimant in which they stated categorically in the second last paragraph that -
“Your
fees are calculated from the assets of the estate. They are therefore only
determinable after the Account reflecting the assets of the Estate has been
drawn and lodged.”
On
30 January 2008 the parties held a meeting with the Master of the High Court.
The issue for discussion pertained to the payment of the executor's fees and
finalization of the estate. In that meeting Mr. Mutyasira is recorded as having
submitted that his bill should be taxed to enable him to lodge his claim for
payment. The respondent's counsel…, is recorded as having reiterated that Mr.
Mutyasira's fees remain due until the estate is wound up not when the court
order was granted. The Master of the High Court resolved that Mr. Mutyasira should
lodge his bill for taxation on the following day.
Apparently
no taxation took place as the executrix dative, Barbra Gonyora, had not yet
drawn up the estate's account. It was only on 25 September 2009 that she
advertised the First Interim Administration and Distribution Account for the
estate. The account was drawn up in United States dollars.
On
11 January 2010 Mr. Mutyasira presented his bill for taxation in respect of
fees for work done as a curator bonis and as executor dative of the estate late
Muchineripi Rishon Gonyora. On 3 March 2010 the parties appeared for taxation.
After deliberations and arguments by both sides, the Taxing Officer, Mr. S.
Madi, made the following decision -
“1.
That Mr. K. Mutyasira is entitled to 10% of the gross value of the estate in
terms of the provisions of the Estate Administrators (Registration and
Examination) (Amendment) Rules, 2007 (No. 1) for his work as curator bonis; and
2.
That for his work as an Executor, Mr. K. Mutyasira is entitled to 50% of the
fees claimed by the executrix, Barbra Gonyora.”
At
that meeting, Mr. Mufara, representing Barbra Gonyora, objected to have the curator's
and executor's fees for Mr. K Mutyasira being paid in United States dollars as
he argued that the judgment by KUDYA J was premised on Zimbabwean dollars, and,
in any event, the work had been done in 2005 when the Zimbabwean dollar was
still in circulation.
Mr.
K Mutyasira, on the other hand, insisted that payment had to be in United
States dollars.
Faced
with the above, the Taxing Officer referred the issue to me for determination in
terms of Order 38 Rule 313 of the High Court Rules….,.
Section
56 of the Administration of Estates Act [Chapter 6:01]…, states that -
“Every
executor shall, in respect of his administration, distribution and final
settlement of any estate, be entitled to claim, receive or retain out of the
assets of such estate, or from any person who as heir, legatee or creditor is
entitled to the whole or any part of such estate, such remuneration as may have
been fixed by the deceased by will or deed or otherwise as fair and reasonable
compensation to be assessed and taxed by the Master, subject to the review of
the High Court, upon the petition of such executor or of any person having an
interest in such estate.”
Section
96 of the Administration of Estates Act [Chapter 6:01] states that -
“Every
tutor, either testamentary or dative, and every curator, either nominate or
dative, shall, in respect of his administration and management of any estate,
be entitled to claim, retain and receive out of the assets of such estate a
reasonable compensation for his care and diligence in the said administration,
to be assessed and taxed by the Master, subject to the review of the High Court
or any judge thereof, upon the petition of any such tutor or curator or of any
person having an interest in the said estate.”
In
casu, the Taxing Officer, upon being presented with the claim, assessed and
taxed the bill. He came to the conclusion that for the claimant's role as
curator dative for the period that he so acted a reasonable compensation is 10%
of the gross value of the estate. He based that assessment on the provisions of
Part C to the Estate Administrators (Registration and Examination) (Amendment)
Rules, 2007, S.I.54 of 2007 which provides for the remuneration of tutors and
curators in percentage terms in relation to the value of the capital assets.
That Part provides remuneration of 5% on the value of capital assets on
assuming control and 5% on the value of capital assets upon termination of
control. This is how the Officer appears to have come to a total percentage of
10% of gross value of the estate.
For
his role as executor dative for the period up to when his office was
challenged, the Taxing Officer came to the conclusion that a fair and
reasonable compensation for the duties and work he did during that period is
50% of fees claimed by the executrix, Barbra Gonyora.
The
awards in percentage terms were not challenged in respect of the two roles he
performed in relation to this estate.
In
as far as the fees for curator bonis
are based on the value of capital assets, it is my view that it is akin to the
claimant retaining 10% of the estate as his fees. If that were to happen surely
no one would begrudge him if he decided to dispose that portion in a currency
of his choice. As is stated in section 96 of the Administration of Estates Act
[Chapter 6:01]…, the executor is “…, entitled to claim, retain, and receive out
of the assets of such estate a reasonable compensation for his care and
diligence in the said administration…,.” The 10% that the claimant was awarded
as his fees cannot, in my view, be converted to the monetary value of such 10%
in the year 2005, it is a 10% value of capital assets which he is entitled to
retain. An award in percentage terms does not really matter in which currency
it is realized as long as at the end of the day it remains 10% of the value of
the capital assets.
In
the same vein, on examining the work done by the claimant, the Taxing Officer
came to the conclusion that a fair and reasonable compensation for all that he
did was an award of 50% of the fees claimed by Barbra Gonyora. That having been
expressed in percentage terms makes it not to be affected by the change of
currencies. All that has to be ensured is that his fees are 50% of the fees
claimed by Barbra Gonyora, no less and no more. In as far as Barbra Gonyora has
lodged the account in United States dollars surely the percentages should be
calculated using that currency.
Counsel
for the respondent did not, in their submissions, deny that it was necessary
for the claimant to wait till the respondent had lodged the Account to have the
Master of the High Court assess and tax his fees. I also did not see any
proposal of how they hoped to calculate the claimant's fees in Zimbabwean
dollars when the executrix had used the United States dollars. In fact, in
their own letter dated 29 June 2007…, the respondent's legal practitioners
stated to the claimant that-
“Your fees are
calculated from the assets of the estate. They are therefore only determinable
after the Account reflecting the assets of the Estate has been drawn and lodged.”…,.
Reference
was made to the case of The Estate Late Patrick Matimura HH12-10.
In
that case, a legal practitioner was appointed executor. In presenting his bill
to the Taxing Officer the executor sought to rely on the Law Society tariff of
2009 for work done from the year 2005 up to 2009. The Taxing Officer felt
constrained to pass the bill as he felt it was not competent for the executor
to rely on the Law Society of Zimbabwe tariff for work done before that tariff
came into operation. The Taxing Officer was dealing with a bill based on the
Law Society of Zimbabwe tariff. It was in those circumstances that BERE J…,.
said -
“It
is clear that the Taxing Officer was within his rights to demand that work done
in 2005 be charged in accordance with the relevant and applicable Law Society
tariff as at that year. In my view, the subsequent years ought to have followed
the same approach. It was certainly not competent for the executor to seek to
rely on the tariff of September 2009 in his computation of fees due to him for
any work done before that date. Such an approach was clearly a violation of the
Law Society guidelines.”
At
page 4 of the same judgment the judge went on to say that-
“In
any event, it is inconceivable, in my view, that the Law Society would
encourage its members to recoup their legal fees in United States dollars for
the time when it was illegal in this country to deal in foreign currency
without complying with the relevant exchange control regulations.”
I
agree with the learned judge on the above view. It is, however, important to
distinguish that scenario from the present.
In
HH12-10, the tariff was set on an annual basis. The tariffs were changed from
year to year. For each year legal practitioners were expected to charge as per
the tariff. In casu, the basis for
the fees is not on a given tariff but on a percentage basis.
Regarding
curator's fees, the percentage is based on the value of the capital assets of
the estate in terms of the provisions of the Estate Administrators
(Registration and Examination) (Amendment) Rules 2007, S.I.54 of 2007. That
percentage has not changed or been altered upon the advent of the
multi-currency regime. It is that percentage that the claimant was awarded. It
would appear to me that the legislature opted to tie the curator's fees to the
value of the assets for a purpose. It may as well be that it was to ensure that
the curator got a just compensation for his role as curator and that such
compensation be related to the value of the assets involved.
In
taxing and assessing the executor's fees the Taxing Officer opted to award it
in percentage terms in relation to the executrix Barbra Gonyora's claim and did
not use the Law Society tariffs. The executrix fees were presented in United
States dollars. It is common cause that the executrix was appointed and did
some of the work before the multi-currency regime yet she did not seek to be
paid in Zimbabwean dollars for that work. She did not divide her remuneration
into two different eras. She is clearly seeking to be paid in United States
dollars for work done during the Zimbabwe dollar period because her
remuneration is due after she has
completed the work and the Master of the High Court has assessed and taxed it.
That has been done in a multi-currency era hence her fees are expressed in US
dollars.
I
am of the view that the 50% awarded to the claimant is of the executrix's claim
in value terms. If the claimant is to realize that percentage in value terms,
he should be paid in the same currency as the executrix. If payment is made in
any other currency it must be such that it equates to that percentage award.
Payment in a currency and amount that would not equate to 50% would not accord
with the award. It would thus not be a fair and reasonable compensation.
Accordingly, I am of the view that the claimant
is entitled to be paid his compensation or fees, for both roles as curator and
as executor, as assessed and taxed by the Taxing Officer, in the currency in which
the Account was prepared and lodged, that is in United States dollars.
