I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.
The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.
Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;
“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.
2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.
3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”
The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:
“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”
The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;
“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”
It is therefore necessary, in determining this matter, to set out the background to the dispute.
In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.
The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.
It is convenient to briefly set out the issues which fell for determination by TSANGA J.
In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.
Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.
It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.
The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.
TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:
1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.
2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.
3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.
The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.
If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.
It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).
As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.
The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.
With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.
TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.
Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.
She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.
In concluding her analysis of the facts, TSANGA J stated as follows;
“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”
The learned judge then made the order which I have quoted (supra).
This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).
The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;
(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”
(b) That he knew such fact to be untrue.
(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”
(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.
(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.
(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.
(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.
(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.
(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.
As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules....,.
Outside of the attack on the affidavit of Elizabeth Anne Rhodes, the fourth respondent (Terence Rhodes) has vehemently opposed this application on other grounds, both procedural and on the merits.
The fourth respondent took a point in limine, that, the applicant did not have locus standi to bring this application. The objection to the applicants' locus standi is twofold:
(i) The fourth respondent averred that the applicant was only a curator bonis of the estate of the deceased.
Section 22 of the Administration of Estates Act [Chapter 6:01] provides for the appointment and powers of a curator bonis. The section provides as follows:
“22(1) In all cases where it may be necessary or expedient to do so, the Master may appoint a curator bonis to take custody and charge of any estate until letters of administration are granted to executor testamentary or dative for the due administration and distribution thereof.
(2) Every such curator bonis may collect such debts and may sell or dispose of such perishable property belonging to the estate as the Master shall specially authorize.
(3) Every appointment made by the Master of any curator bonis shall, upon the application of any person having an interest in such estate be subject to be reviewed and confirmed or set aside by the High Court or any judge thereof; and the High Court or judge by whom such appointment is set aside may appoint some other fit and proper person to be curator bonis.”
The fourth respondent's counsel submitted that the powers of a curator bonis are limited.
The powers which he may exercise are clearly set out in section 22(2) of the Administration of Estates Act as quoted above.
A curator bonis is a caretaker of a deceased estate. He protects the estate and I would say that he ensures that the estate is preserved as it is until the executor testamentary or dative takes over. During this period of taking care of the estate, the curator bonis may collect debts or dispose of perishable assets of the estate. The curator bonis powers in this regard are exercised under the specific authority of the Master.
In this application, the applicant, in paragraph 1 of his affidavit, deposed to the fact that he was acting in his capacity of executor dative. He attached to the affidavit what he called “Annexure 'A' being letter of administration.”
Annexure 'A' aforesaid is however “Letters of Confirmation” of the applicants' appointment as curator bonis in the estate of the deceased.
TSANGA J's judgment was delivered on 20 November 2013. The Letters of Confirmation of the applicant, as curator bonis, were issued on 1 November 2013. Quite clearly, the applicant could not, as at 20 November 2013, have had power to engage in the court case HC1589/13 before TSANGA J.
The applicant's powers would only have derived from section 22(2) of the Administration of Estates Act.
Even if a wide interpretation was to be accorded section 22(1) of the Administration of Estates Act, that the applicant, as curator bonis, had custody and charge of the estate, the money in question which formed the basis of the application before TSANGA J was not estate property but would have accrued to the companies as separate legal entities with a separate existence at law.
I therefore find merit in the objection that the applicant would not have had locus standi to seek the rescission of TSANGA J's order.
In response to the fourth respondent's point in limine on locus standi, the applicant, in paragraph 3.1 of the answering affidavit, simply denied the allegation that he lacked locus standi. He then attached Letters of Administration appointing him executor dative of the estate of the late Brian James Rhodes.
The appointment was made on 26 February 2014. Judgment HC1589/13 had already been handed down on 20 November 2013.
The applicant has argued, in his heads of argument, that, he erroneously attached the letters of his appointment as curator bonis to his founding affidavit instead of the letters of appointment as executor dative attached to his answering affidavit.
He did not explain how the mistake arose. He is required to do so.
He argues that there is no prejudice to the fourth respondent caused by the error because when the applicant instituted the present application, on 23 January 2015, he was already the duly appointed executor dative.
The parties are agreed on the legal position regarding the fact that only an executor of a deceased estate is reposed with authority and power to represent that estate.
The remarks of KUDYA J, in Nyandoro & Anor v Nyandoro & Ors HH89-08, in which he referred to the case of Clarke v Bernade N.O. & Two Ors 1958 R&N 358 (SR) to the effect that the executor of a deceased estate is the only person with locus standi to bring a vindicatory action relative to the property alleged to form part of the estate are correct.
The fourth respondents' counsel referred to these authorities.
The applicants' counsel referred to WILLE's Principles of South African Law, 8th ed, though the precise page from which he quoted as follows was not provided. Counsel quoted as follows:
“It follows that the executor alone can sue and be sued in respect of estate matters. Legal proceedings are brought or defended by him in his capacity as executor for he is the legal representative of the deceased.”
The applicants' counsel further referred to the cases of Snyman v Basson N.O. 1995 TPD 368…, and Greenberg v Estate Greenberg 1955 (3) SA 361 to buttress his submissions on the same point.
The legal position is therefore properly ventilated.
The applicant has submitted, that, his annexing of correct letters of appointment, as executor dative, in the answering affidavit, should be taken as having cured the defect or mistake in the founding affidavit.
Counsel for the applicant cited the case of Baeck & Co. SA (Pty) Ltd v Van Zummeren & Anor 1982 (2) SA 112…, as authority that a deficiency in authority can be cured in retrospect through the filling of an answering affidavit. GOLDSTONE J…, stated:
“The right to move for the dismissal of the application on the ground of lack of locus standi is, with respect, hardly what one would envisage as constituting a vested right…,.
If, in law, the deficiency in his authority can be cured by ratification having retrospective operation, I am of the opinion that he should be allowed to establish such ratification in his replying affidavit in the absence of prejudice to the first respondent.
It is clear that, in this case, subject to the question of ratification and retrospectivity, the first respondent would not be prejudiced by such an approach.”
The applicant further relied on various other South African decisions, namely, Evangelical Lutheran Church in Southern Africa (Western Diocese) v Sepeng & Anor 1980 (3) SA 958 (B) and Merlin Gerin (Pty) Ltd v All Current and Drive Centre (Pty) Ltd 1994 (1) SA 659C.
The two decisions make the same point made in Baeck & Co. SA (Pty) Ltd v Van Zummeren & Anor 1982 (2) SA 112, that, where an applicant lacks authority to institute proceedings which he will have commenced, he can cure the defect by providing proof through ratification and further providing proof of pre-existing authority.
The applicant has submitted that this court should adopt the same reasoning and approach and hold that the defective or invalid authority erroneously filed by the applicant with his founding affidavit was ratified by the filing of proper Letters of Administration annexed to the answering affidavit.
The fourth respondent's counsel has argued, that, to allow the correction of a defective founding affidavit, through the introduction of new matter in an answering affidavit, would go against the accepted practice of this court.
He submitted, that, this court has always followed the practice, that, in considering applications in application proceedings, the applicants' case is built upon the founding affidavit. If, on the founding affidavit, no cause of action is disclosed, then the application must fail.
Counsel has cited a plethora of cases, including Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (HC) and quoted the court's pronouncement therein as follows…,:
“It is a well-established general rule of practice that new matter should not be permitted to be raised in an answering affidavit.
This has been the settled practice of our courts, at least since the matter was adverted to in Coffee, Tea and Chocolate Co. Ltd v Cape Trading 1930 CPD 81 at 82 and Air Zimbabwe & Ors v Zimbabwe Revenue Authority HH96-03 wherein a number of decisions are quoted, being authority, that, in application proceeding, an applicant stands or falls on his or her founding papers and may not raise a different cause of action in his or her answering affidavit.”
It is necessary, in my view, to just refresh on what a cause of action is.
In simple terms, a cause of action would be constituted by a totality of facts necessary to be proved by the applicant or the plaintiff to justify a right to sue or enforce a right against the opposing party, being the respondent or defendant as the case may be.
MALABA JA…, in the case Traude Alison Rogers v Elliot Grenville Kern Rodgers and Master of High Court SC64-07 quoted the case of Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 H 54 E-F, thus:
“A cause of action was defined by LORD ESTER MR, in Read v Brown (1888) 22 & B 131, as every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.
In the same case, LORD FRY, at 132-133, said the phrase meant everything, which if proved, gives an immediate right to judgment.
In Letang v Cooper (1965) QB 232 at 242-3 DIPLOCK LJ (as he then was) said a cause of action is simply a factual situation, the existence of which entitled one person to obtain from the court a remedy against another person.”
The learned judge also referred to the cases of Patel v Controller of Customs & Excise HH216-89; Hodgson v Granger & Anor HH133-91; Dube v Banana 1998 (2) ZLR 92 (H).
I would also add the instructive judgment of MAKONI J in Meikles Limited v Zimbabwe Stock Exchange & Alban Chirume HH66-16.
Having defined a cause of action, the next question to be addressed is whether the applicant established a cause of action on the founding affidavit.
A person or juristic entity which lacks locus standi cannot, in my view, be said to have established a cause of action.
This is so because an applicant lacking in legal capacity is not recognizable by the court.
The applicant, in this case, averred in the founding affidavit that he was the executor dative of the Estate Late Brain James Rhodes. He averred that he derived his powers from annexure 'A' being his Letter of Administration.
Annexure 'A', as is common cause, is a letter, not of administration but of confirmation as curator bonis.
The applicant did not give any other details of his appointment.
Had the applicant alleged facts pertaining to the details of his appointment as executor dative, then, the court could have appreciated that there was a mix up between the details of his appointment and the alleged wrong annexure. The correction sought to be made by a different annexure, in the answering affidavit, could then have made sense. Annexure 'A' to the answering affidavit could, in such circumstances, have been properly condoned.
In my view, a distinction should be made between ratification of questioned authority and a substitution of different legal persona.
In this case, the applicant cannot be said to have ratified the defective or invalid authority.
If Annexure 'A' to the founding affidavit suffered from some defect, one could then seek to authenticate it by ratification. Ratification cannot be achieved through substitution.
This is what the applicant seeks to do.
Annexure 'A' to the founding affidavit, which the applicant presented as granting him powers to bring this application, does not suffer from any legal defect. No ratification of the same is required. It is a valid document which however precludes the applicant from making a claim as the one in casu.
The document allows the applicant to make certain defined claims.
The South African authorities cited by the applicant, in support of his assertion that he can properly remedy the defect through ratification, do not cover a scenario as the one before the court.
The applicant wore two hats, as curator bonis and as executor dative. Both hats provide for defined powers under the Administration of Estates Act.
The applicant chooses which hat to wear in order to exercise his powers. He chose a hat to wear in exercising powers outside the parameters of that hat. This rendered his actions nugatory.
I am persuaded that the remarks of LORD DENNING, in McFoy v United Africa Co Ltd (1961) 3 ER 1169, being a case quoted by the fourth respondent's counsel, to the effect that a void act is in law a nullity and that a nullity, as the word connotes, means that there is nothing, are apt in this case.
One cannot cure a nullity.
See Hativagone & Anor v CAG Farms (Pvt) Ltd SC42-15.
Another way of looking at the issue of locus standi raised by the fourth respondent is to consider it as an exception that the applicant lacks locus standi, and, consequently, no cause of action arises from his papers.
An exception that there is no cause of action, if upheld, cannot be cured through substitution in order to found a cause of action. This would be tantamount to allowing the applicant to bring a new cause of action through a replying affidavit.
In this case, the applicant was not without recourse.
Having realised that he had relied on a valid legal document, which, however, did not permit him to exercise the powers he sought to invoke, he should have simply withdrawn his application and commenced it afresh dorning the correct hat of executor dative and attached the correct legal authority.
If the matter had commenced, not by application, but by action, the applicant could have applied to amend his pleadings or papers; see Arafas Mtausi Gwarazimba v AKA Jutie Panagiota Mercuri N.O. and Master of the High Court HH168-15.
In application proceedings, an answering affidavit seeks to answer factual averments made in the opposing affidavit. The answering affidavit should not be used to cure a legal defect and build a case which, on the founding affidavit, is not established.
I am not persuaded to accept that the applicant could properly cure the defect in his founding affidavit, on locus standi, through the production of what he purports to have been the authorising document for his case in the replying affidavit.
The applicants' case must therefore fail.
