1. KENIAS MUTYASIRA
BARBRA GONYORA NO
THE MASTER OF THE HIGH COURT
THE REGISTRAR OF COMPANIES
2. BARBRA GONYORA N.O.
THE MASTER OF THE HIGH COURT
HIGH COURT OF ZIMBABWE
HARARE, 14 October 2013 and 17April 2014
FAMILY LAW COURT
AdvocateF. Girach, for the applicant
Advocate T. Magwaliba, for the 1st respondent
No appearance for all other respondents’ in both cases
MAWADZE J: At the commencement of the hearing of these two matters both parties agreed that the two matters be consolidated and that a composite judgement be granted. This is so because both matters involve the same parties save for the Registrar of Companies in one of the cases and the subject matter is essentially the same. I granted the request and consolidated both matters.
For the purposes of this judgement I shall refer BEAUTY GONYORA NO as the applicant and KENIAS MUTYASIRA as the first respondent. All the other parties who are not very relevant in the issues involved would be referred to as other respondents. This is so despite the fact that Beauty Gonyora NO is only the applicant in Case No. HC2770/13 and the first respondent in HC 1351/13 and Kenias Mutyasira is the applicant in HC1351/13 and first respondent in HC2770/13. I also agreed to consolidate both matters because I am of the view that this main issue in dispute in both matters disposes of the matters inclusive of all other ancillary matters arising in both cases. This main issue is whether the first respondent Kenias Mutyasira is entitled to fees claimed or not.
It may be difficult to understand the dispute between the parties without giving the full background facts of the long history of acrimony and litigation between the parties for over a decade which even spilled to the Supreme Court.
The facts of the matter are largely common cause and are summarised in the various judgements delivered. I shall simply summarise them for the purposes of completeness.
The applicant (Barbra Gonyora) married the late Muchineripi Rishon Gonyora in 1976 in terms of the African Marriages Act [Cap 2:38], the percusor to the present [Cap 5:07]. The deceased Muchineripi Rishon Gonyora died on 13 August 2002 in Harare and is survived by a number of children who are cited as respondents in both matters. The applicant registered the deceased’s estate at the Harare Civil and Customary Law courts and on 17 October 2002. The applicant being the widow was appointed executor dative and was to prepare a distribution plan for presentation to the magistrate for approval. Apparently the applicant for 3 years was not able to do so and on 30 August 2005 the Master of the High Court (the Master) called a special meeting to discuss all matters relating to the estate of late Muchineripi Rishon Gonyora. The applicant and other beneficiaries some of which had not attended the meeting at the Magistrate’s Court in 2002, attended this meeting. At this meeting the first respondent Kenias Mutyasira (first respondent) was appointed curator bonis in the estate. On 7 October 2005 the first respondent was appointed executor dative of the estate of late Muchineripi Rishon Gonyora. This marked the start of protracted and seemingly unending bruising legal battles between the applicant and the first respondent. Before I deal with that let me first refer to the relief sought by the applicant and first respondent in the two cases before me.
In case No. HC1351/13 in which the first respondent is the applicant and applicant is first respondent, the first respondent seeks the confirmation of the provisional order in terms of the final order in the following terms;
“1. The approval on 2 October 2012 of the Interim Administration and Distribution account of estate late and Muchineripi Rishoni Gonyora be and is hereby declared null and void.
2. That the transfer of the shares done by the first respondent and facilitated by second and third respondents be and is hereby set aside.
3. That the first respondent be and is hereby ordered in her personal capacity to pay costs of suit on an attorney and client scale.”
In the other case No HC2770/13 in which Barbra Gonyora is the applicant and Kenias Mutyasira the first respondent which is a court application the applicant seeks declaratory relief in the following terms.
“It is declared that;
1. No rights accrue to the first respondent and no obligations are assumed by the estate of the late Rishoni Muchineripi Gonyora towards the first respondent stemming from his void appointment either as curator bonis and or executor dative to the estate of the late Rishon Muchineripi Gonyora.
2. Further that any actions taken by any of the parties herein which purported to assert such rights against estate of the late Rishoni Muchineripi Gonyora or to assume such obligations on behalf of the deceased’s estate are in themselves void ab initio and unsustainable being actions premised on a void act.
3. Further, that for the avoidance of doubt any award of fees for curatorship and curatorship in the estate of late Rishoni Muchineripi Gonyora to the first respondent following the declaration of his appointment as null and void be and is hereby declared null and void ab origine and of no effect.”
As already said the context and the nature of the relief sought by either the applicant or the first respondent in these two matters can only be better understood when one deals with the history of the dispute between the parties. I now proceed to do so.
The first legal battle was commenced by the applicant in HC221/06 in the matter of Barbra Gonyora v The Master and Kenias Mutyasira, a court application in which she sought the nullification of the appointment of the first respondent by the Master as the executor dative to the estate of the late Rishoni Muchineripi Gonyora. The matter was argued before my brother KUDYA J who made the following order;
“1. The appointment of the 2nd respondent Kenias Mutyasira as the Executor Dative to the estate of late Muchineripi Rishoni Gonyora DRH1989/02 DR1854/05 be and is hereby declared null and void.
2. The appointment of Barbra Gonyora the surviving spouse as Executor Dative to the estate late Muchineripi Rushoni Gonyora DRH 1989/02 DR1854/05 on 19 October 2002 be and is hereby declared as valid.
3. The fees of the 2nd respondent for administering the estate shall be paid by the estate up to the date that the 2nd respondent was served with this application in case No. 556/05 . (emphasis is mine)
4. The 2nd 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 hearing the urgent chamber application on 25 January 2006 shall be borne by the estate late Muchineripi Gonyora”
The first respondent Kenias Mutyasira was aggrieved by the nullification of his appointment as executor dative of the estate late Muchineripi Rishoni Gonyora (the estate) and appealed to the Supreme Court. It is important to note that the appeal only related to parts of KUDYA J’s order not the whole judgement and that there was no cross appeal from the applicant. The appeal was dealt with by SANDURA JA in the matterMutyasira v Gonyora & Anor 2007 (1) ZLR 318. The appeal was dismissed in its entirety thus confirming KUDYA J’s order.
After the dismissal of the appeal the first respondent then sought to be paid fees due to him as per para 3 of KUDYA J’s order. The applicant and first respondent were unable to agree on the amount due to the first respondent. The Master was unable to resolve the dispute and he referred it to a Judge in terms of Order 38 r 313 of the High court Rules 1971 as the Master had taxed the fees/costs. The matter was dealt with by my brother CHITAKUNYE J in the case of Mutyasira v Gonyora 2010 (1) ZLR 489 (H). It is important to emphasise that the dispute between applicant and the first respondent in this matter dealt with by CHITAKUNYE J was not whether the first respondent is owed some fees or not. The dispute was the currency in which the fees incurred in 2005 should be paid, that is whether in Zimbabwean dollars or in United States dollars as per the Master’s taxed bill. It was ordered at pp 497 as follows;
“Claimant (1st respondent in casu) 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”
The first respondent’s woes were far from over. The applicant seemed unwilling to comply with CHITAKUNYE J’s order and did not pay the first respondent. Instead the first respondent instituted a fresh action in the case Kenias Mutysira v Estate Muchineripi Rishoni Gonyora (represented by Babra Gonyora in her capacity as the Executrix Dative) and the Master N.O HH343/12. The first respondent claimed payment of US$160. 788.98 plus interest which was the fees assessed as due by the Master. The action was vigorously defended by the applicant and a protracted trial ensued before my brother UCHENA J. What is important to note is that in this action the applicant was not disputing indebtedness in the amount claimed but raised the defence of set off and other technical issues. The applicant’s defence, was that the first respondent’s debt had been extinguished by set off as the first respondent had sold stand No. 462 Prospect Waterfalls Harare for Zimbabwe $3 500 000 currently valued at $250 000 and took the money hence his claim of fees in the sum of US$160 788-98 plus interest was extinguished. In addition to that the applicant also alleged that the first respondent had sold some shares belonging to the estate and got his fees. The court after a full trial did not find favour with the applicant’s case and UCHENA J granted the following order;
“In the result the plaintiff’s claim succeeds. It is therefore ordered as follows
1. The first defendant is ordered to pay the plaintiff the sum of US$160 788.98, plus
2. Interest at prescribed rate from date of summons to the date of payment in full and
3. Costs of suit.”
The applicant did not comply with UCHENA J’s order and instead appealed to the Supreme Court in case No. SC 315/12. The appeal was out of time hence applicant also filed before the same court an application for condonation of late noting of the appeal. This meant that the first respondent could not enforce UCHENA J’s order. However despite noting the appeal the applicant proceeded to have the Interim Liquidation and Distribution Account approved by the Master which account excluded first respondent’ claim. In fact applicant proceeded after such approval to distribute estate shares to various beneficiaries without paying amount due to the first respondent. On 5 February 2013 the applicant withdrew the application for condonation of late noting of appeal which in essence meant there was no longer a valid appeal.
The first respondent believed he was now at liberty to enforce the judgement by UCHENA J and proceeded to issue a writ of execution for attachment, removal and sale of estate shares in some companies. It is at this stage that the first respondent discovered that applicant had distributed some shares when she was well aware that she had noted an appeal to the Supreme Court against UCHENA J’s judgement which she had not complied with. This prompted the first respondent to protest to the Master who on 8 October 2012 reversed the approval/confirmation of the first Interim Liquidation and Distribution Account. When the applicant was advised of the Master’s decision the first respondent alleged she sought the intervention of the Minister of Defence who as per Annexure ‘P’ on pp 39 in HC135/13 wrote a letter to the Master dated 15 October 2012 asking the Master to explain his decision. The Master’s response Annexure ‘Q’ in HC1351/13 dated 17th October proffers no clear solution. This prompted the first respondent to approach this court on an urgent basis in HC1357/13 (now before me) seeking a provisional order interdicting applicant and other beneficiaries from disposing of shares transferred to them from the estate by the applicant. On 25 February 2013 my brother CHITAKUNYE J granted by consent interim relief. It is the terms of this final order arising from these proceedings which the applicant is opposing in one of the matters now before me which relief I have already alluded to.
Despite the fact that the provisional order in HC1351/13 was granted by consent applicant indicated that she would oppose the confirmation of the final order. All attempts by the first respondent as per Annexure ‘A’ pp 120 in HC1351/13 a letter dated 26 February 2013 could not persuade applicant otherwise. The first respondent reasoned that applicant’s position was untenable as the matter has been dragging on for a decade at a great expense to the estate in legal fees and that the first respondent’s debt remained unpaid and accruing interest as per UCHENA J’s order. The first respondent as per that letter offered to forgo all the interest and agree to payment of US$150 000 which is much less than the amount US$160 788.98 plus interest granted by UCHENA J. The response from applicant’s legal practitioners was that the offer was being considered.
There was no favourable response communicated to the first respondent. Instead the applicant filed another court application HC2770/13 on 9 April 2013 (one of the matters now before me) seeking the declaratory relief I have already alluded to. As per her founding affidavit the applicant was now singing a different tune. The basis of the new court application is captured in par 10 of applicant’s founding affidavit in which she said;
“10.11 The court a qou however having found the first respondent’s appointment to be null and void and having confirmed my appointment as valid (i.e. that I was never lawfully removed from the office of executrix dative) curiously proceeded to award the first respondent fees for “professional service rendered” arising from a void appointment.”
It is my respectful view that this is an attack directed at my brother KUDYA J’s judgement when the applicant did not appeal against those findings she deemed improperly made. I shall revert to this later. A similar view is taken in respect of the judgement granted by UCHENA J after trial and by CHITAKUNYE J after referral by the Master which judgements I have already dealt with. Again the applicant merely attacks these judgments in the court application when no appeal was made by her in respect of these judgements or orders. In fact my brother CHITAKUNYE J in the case 2010 (1) ZLR 489(H) is accused of having approved fees calculated using the wrong tariff. It is important to note that when the matter was referred to CHITAKUNYE J by the Master he asked for all parties involved to file heads of argument. The applicant did not raise the issue of ‘wrong tariff’ but argued that payment should be in Zimbabwe dollars!
After laying out the history of these two matters or rather the dispute between the parties I now turn to the question both parties agreed is the relevant question – the question being whether the first respondent Kennias Mutyasira is entitled to the fees claimed or not.
I should confess that it was extremely difficult to appreciate Advocate Girach’s submissions on behalf of the applicant. Advocate Girach submitted that the starting point is the Supreme Court judgement by SANDURA JA 2007 (1) ZLR 318 in which the decision by KUDYA J that the appointment of the first respondent as the executor was incompetent was up held. Advocate Girach further submitted that act of taxing a bill of costs or fees was not valid or sustainable at law. He submitted that it is void. The seemingly simple but illogical argument advanced by the applicant is that no fees are due to the first respondent on the basis that his appointment was held to be invalid and set aside. Advocate Girach relied on the case of Geddes v Tawonezvi 2002 (1) ZLR 479 (S) in which MALABA JA (as he then was) dealt with a labour dispute in which the High Court set aside misconduct proceedings and the determination made on account that was the proceedings were instituted by an incompetent person. Advocate Girach referred and relied on the dicta at pp 487 in which MALABA JA quotes SANDURA JA in Mugwebe v Seed Co Ltd and Anor 2000 (1) ZLR 93 (S) at 96 H -97 A in which reference is made to one of the famous words by LORD DENNING in MacFoy v United Africa Co Ltd (1961) 3 A11 ER 1169 (PC) at 11721 at 487A-C;
“The question which now arises is whether the appellant’s suspension was valid. There is no doubt in my mind whatsoever that it is null and void. It was a complete nullity. In this respect I can do no better than quote what Lord Denning said in MacFoy v United Africa Co Ltd (1961) 3 A 11 ER 1169 (PC) at 11721;
If an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
I do not believe that there can be an argument arising from LORD DENNING’s wise words on that relevant aspect of the law. The issue however, is whether this legal principle is being properly applied on the facts of the case. I do not believe so.
It is not in issue that the first respondent’s appointment as executor was declared void and invalid by KUDYA J, a decision upheld by the Supreme Court. The applicant’s argument is that anything else which the first respondent did is a nullity and that applicant is merely seeking an order to so declare as a formality. It is on that basis that the applicant argues that the first respondent cannot be entitled to any fees at all as in the eyes of the law he was never a curator or, an executor or was he entitled to claim fees using the scale or tariffs used by executors. This submission by the applicant ignores KUDYA J’s judgement which is extant in which in para 3 of the order stated it was specifically stated that despite the setting aside of his appointment as an executor, first respondent is entitled to a fee. The same can be said of the judgements by CHITAKUNYE J which specified the currency in on which the fees are to be paid and UCHENA J’s judgement which specified the amount to be paid. The correctness or otherwise of these judgements is not for this court to decide. They all remain valid and binding unless and until set aside by a competent court. It would be incorrect and disingenuous for appellant to argue that all these proceedings are a nullity. This probably explains the difficulty Advocate Girach had when the court inquired from him whether his view was that first respondent is not entitled to any fees in view of KUDYA J’s order. He conceded grudgingly that the first respondent may be entitled to a fee but not based on the tariff used by executors. In a bid to salvage applicant’s case it was submitted that first respondent is entitled to be paid for services rendered. However, applicant remained adamant that the fee cannot be competently paid as the taxed bill of costs is on the basis of the tariff used by executors when in fact first respondent’s appointment was nullified.
I am not persuaded by the first applicant’s submissions in this regard. KUDYA J in his judgement clearly grappled with the question of whether first respondent should be paid for services that he rendered because his appointment was void. See p4 of the cyclostyled judgement. Let me refer to what the learned Judge said at p 8 of the cyclostyled judgement;
“Mr Chikumbirike also submitted in his oral submissions even though it was not part of his draft order in both applications that the court makes an order denying the second respondent of any fees due to him for work he has done on the basis that his appointment was void. That submission exercised my mind. It seems to me that the second respondent did not solicit appointment. He was appointed by the master, who from the zeal with which he submitted his reports appears to have sincerely believed that his actions were in accordance with the law. It seems to me that the only fair order to make will be to allow the second respondent to obtain his costs up to the date that he was served with the application in case number 55677/05. On that date he became aware of the stance taken by the applicant in these proceedings. He however proceeded to act. He did so to his peril as he had prior notice that he should stop. He should in my view have proceeded with caution thereafter. I was not able to determine from the records before me the date on which he was served, but I am sure it is a date which can be easily ascertained, even if it is not mentioned in the order.”(emphasis is mine)
It is this lucid reasoning by KUDYA J which informed para 3 of the order he granted. The deatils of how much is due and in what currency were later dealt with in subsequent proceedings I have referred to.
The order by KUDYA J was appealed against by the first respondent. Paragraph 3 of that order was in fist respondent’s favour as it was an order against the estate represented by the applicant to pay fees to the first respondent despite the invalidation of his appointment. If applicant did not agree with this finding one would have expected the applicant to appeal. However, applicant did not cross appeal against any part of KUDYA J’s order let alone para 3. It logically follows that the issue as to whether first respondent should be paid fees or not was therefore not before the Supreme Court. It was not dealt with. This means that the order granted by KUDYA J in is entirety inclusive of para 3 is valid. The reasons for granting the order in para 3 were given. It is based on the principle of fairness and equity. It matters not if applicant agreed or not with this. If aggrieved the proper course of action to take was to cross appeal.
It is clear that based on KUDYA J’s judgement, para 3 of the order, the first respondent proceeded to issue summons out of this court against the applicant based now on a taxed bill in the matter dealt with by UCHENA J. It is surprising why applicant if she was aware of the voidness of KUDYA J’s order in para 3 did not raise it as part of her defence. Instead applicant raised other technicalities and the defence of set off thus acknowledging indebtedness and the validity of KUDYA J’s order. Similarly applicant did not raise the issue of voidness before CHITAKUNYE J who specifically dealt with the taxed bill of costs.
In my view applicant cannot seek to have this court review its own orders under the guise of declaratory relief. This court can only correct vary or rescind its judgements and orders in terms of r 449(1) (a) to (c) of the High Court Rules 1971. The applicant has not approached the court on that basis but seeks declaratory relief. I do not share the view that para 3 of KUDYA J’s order can be pronounced by this court as void abinitio. The simple fact is that the judgements of this court are not reversible by the same court but appeable. The indebtedness of the applicant to the first respondent in the amount later granted by UCHENA J is clear. The machinations and legal gymnastics by the applicant are futile and inconsequential. The applicant should simply comply with the court orders and pay what is clearly due to the first respondent.
I now deal with the aspect of costs in respect of both matters. The first respondent has asked for costs not only on the attorney and client scale but also de bonis propriis against the applicant in her personal capacity and her legal practitioner. No meaningful submissions were made by the applicant in both matters in that regard.
I am inclined to grant the order of costs requested by the first respondent. This is a classic case where such an order is appropriate. The history of the matter and the conduct of the applicant and her legal practitioner leaves one with no option but to grant such an order.
It is trite law that costs on a legal practitioner and client scale are awarded only in exceptional circumstances and that lack of bona fides on the part of a party may justify such an award see Chisese v Garamukanwa 2002 (2) ZLR 392 (5) at 405 A-B. When one considers the various cases dealt with by this court which I have referred to extensively in dealing with the history of this matter one cannot say that the applicant was properly exercising her right to argue points in her defence. I have no doubt in my mind that the applicant went on a calculated and deliberate attempt to abuse the court process in a bid to evade the estate’s legal obligations to the first respondent. The applicant’s conduct cannot be said to be motivated by a genuine desire to either persuade or defend the various claims or suits I have already alluded to. See also Apotex Incorporated v Surgimed (Pvt) Ltd 2002 (2) ZLR 612 at 616 F.
It is also a settled principle of law that costs de bonis propriis may be awarded against a legal practitioner who has abused the legal process and has acted mala fides in a highly irreprehensible fashion or manner. See Matamisa v Mutare City Council (AG Intervening) 1998 (2) ZLR 4395 at 448 B-C. A good example of such conduct is bringing frivolous and vexation applications. This is exactly what happened in this case. I find no need in the circumstances to burden the estate with costs arising from the applicant’s actions motivated by her personal interests and the misplaced zeal of her legal practitioner, which actions were not geared at protecting the interests of the estate. A few examples will bring this point home.
After KUDYA’s judgement ordering applicant to pay the first respondent for the services rendered despite the nullification of the first respondent’s appointment as an executor, applicant did not challenge that order by cross appealing. When the first respondent managed to have the bill taxed by the master applicant raised objections. As per the judgement by CHITAKUNYE J applicant raised the defence that payment should be in Zimbabwe dollars rather than in United States dollars. Applicant was ordered to pay in United States dollars. Applicant did not appeal against this decision but simply decided not to pay the now liquidated amount. The first respondent had to institute an action to cause applicant to pay. A protracted trial ensued before UCHENA J wherein applicant raised points in limine and the defence of set off. Applicant was again ordered to pay the amount due now with interest at prescribed rate. Applicant then purported to appeal against this judgement out of time, sought condonation but later withdrew the appeal. Applicant still did not comply with UCHENA J’s judgement. Instead she proceeded to distribute the assets of the estate without paying what was due to the first respondent. The first respondent had to protect his interests by making an urgent chamber application for a provisional order which order was granted by CHITAKUNYE J by consent. The first respondent offered to accept a lesser fee but applicant will have none of it. Instead she opposed the confirmation of the provisional order granted by consent after which she filed her own application seeking the so called declaratory relief.
The conduct of applicant’s legal practitioner cannot escape censure in all these proceedings. I do not believe applicant’s legal practitioner in all those endeavours was exercising his or her duty as an officer of the court and motivated solely by the administration of justice. The impression created is that of a legal practitioner now persuing the client’s (applicant’s) perceived rights at all costs. This did not happen in a single case and over a short period of time but for a number of years during which applicant’s legal practitioner relentlessly but unsuccessfully persued non existing defences like the currency to be used, tariff applicable, set off and other tactics of noting an appeal strictly to delay the execution of judgement. The applicant’s legal practitioner in these circumstances had a duty to properly advise the applicant. As a result of that failure a lot of the court’s time and resources were wasted as this court has been burdened with the same issue of the amount due to the first respondent under the guise of several court actions or applications. I have no doubt that the first respondent as a consequence has been unnecessarily put out of pocket. An appropriate order of costs should be granted to remedy this.
I am satisfied that this is an exceptional case where an order of costs de bonis propriis should be awarded against applicant’s legal practitioner in view of the manner he or she handled the dispute between the parties after KUDYA J’s judgement. It is clear that defences raised by applicant’s legal practitioner were vexations and arguments made constitute or involve an abuse of court process. I therefore have a duty to express this court’s displeasure in that regard. See Omarshar v Karasa 1996 (1) ZLR 584 (H) at 591 F, Sable Chemical Industries LTD v Easerbrook 2010 (2) ZLR 342 (S) at 350A.
In the result I make the following order;
1. The applicant’s claim in case No HC 2770/13 be and is hereby dismissed.
2. Judgement be and is hereby entered in favour of the respondent Kenias Mutyasira being the applicant in case HC 1351/13 as follows;
2.1.The approval on 2 October 2012 of the Interim Administration and Distribution Account in estate late Muchineripi Rishoni Gonyora be and is hereby declared null and void.
2.2.The transfer of the shares done by the applicant Barbra Gonyora N.O being the first respondent in HC 1351/13 and facilitated by the Master and the Registrar of Companies be and is hereby set aside.
3. The applicant being Barbra Gonyora N.O but in her personal capacity and her legal practitioner are ordered in respect of both cases HC 2770/13 and HC 1351/13 to pay costs de bonis propriis on a legal practitioner client scale jointly and severally the one paying the other absolved.
Nyika, Kanengoni and Partners, applicant’s (Barbra Gonyora NO) legal practitioners
Wintertons, 1st respondent’s (Kennias Mutyasira) legal practitioners