1
HH 248-15
HC 2183/13
BEATER GORE
and
ERIC ALEXANDER GORE
and
WENDY GORE
and
LYDIA GORE
and
STANLEY GORE
and
EBBA GORE
and
TAMBUDZAI GORE
and
TRACY GORE
and
SANDRA GORE
and
NEPHIAS GORE
and
LYNETT GORE
and
NEWMAN GORE
and
JOYCE GORE
versus
MARYBAR RUDDO
and
MARYBAR RUDDO
(in her capacity as the executrix Dative of the Estate Late Eric Shepherd Gore)
and
ESTATE LATE SHEPHERD GORE
(Represented herein by MARYBAR RUDDO in her capacity as the Executor Dative)
and
MASTER OF THE HIGH COURT
and
REGISTRAR OF DEEDS
HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 19 March 2015
Opposed Application
Adv.T. Magwaliba, for applicants
E. Mangezi, for 1st, 2nd and 3rd respondents.
CHITAKUNYE J. This is an application for review in terms of Order 33 of the High Court Rules, 1971, as amended. In the grounds of review the applicants allege that the fourth respondent did not follow the procedure laid out in s 117 of the Administration of Estates Act [Chapter 6:01] when he appointed the first respondent to be Executrix Dative of the third respondent with the result that the first respondent transferred the immovable property belonging to the third respondent to herself and by so doing prejudiced the first to the thirteenth applicants who are beneficiaries of the third respondent.
The applicants thus seek an order:
a) Setting aside the appointment of the first respondent as executrix of the estate late
Eric Shepherd Gore;
b) Setting aside the transfer of the immovable property from estate late Eric Shepherd
Gore to the first respondent;
c) Directing the fifth respondent to cancel the Deed of transfer in the name of the first
respondent and to reissue the deed of transfer in the name of late Eric Shepherd
Gore; and
d) Costs on the higher scale.
The facts in this case are largely common cause. The late Eric Shepherd Gore (herein after referred to as the late Eric) died intestate on 5 October 2000. He was survived by two wives to whom he was married in terms of customary law. These are the first applicant and the first respondent. His estate was thus to be administered in terms of Part 111A of the Administration of Estates Act, [chapter 6:01].
The late Eric was also survived by 14 children, twelve of whom are the second to the thirteenth applicants.
At the time of his death the late Eric had acquired several movable properties, an immovable property in the form of a homestead at Msindo Kraal, Rwizi Village, Mhondoro and another immovable property known as Remaining Extent of Subdivision A of Lot 34 of Hatfield Estate, Hatfield Harare.
Pursuant to the death of the late Eric, an edict meeting was held in terms of the applicable law as a result of which an independent executor was appointed on 30 April 2001. That executor was one Mazvita Wakatama.
The executor proceeded to administer the estate as required and prepared a distribution plan which lay for inspection from 26 October 2001 in terms of the Administration of Estates Act. In terms of the distribution plan by the executor the two surviving spouses, that is the first applicant and the first respondent, were awarded usufruct rights over the homestead at Msindo Kraal Rwizi Village and over Subdivision A of Lot 34 of Hatfield Estate Hatfield. Subdivision A of Lot 34 Hatfield was awarded to the 14 surviving children in undivided equal shares.
It is common cause that no objection was received within the period of inspection. The parties are however not agreed as to what took place after the period within which objections were supposed to be filed. The applicants through the fifth applicant, alleged that they believed the plan was confirmed as no objection had been received or brought to their notice during the period of lying for inspection; which period he put at 26 October 2001 to 16 November 2001.
The fifth applicant in his founding affidavit alleged that in October 2012 he learnt that the first respondent intended to dispose of the immovable property, namely subdivision A of Lot 34 of Hatfield Estate. Being mindful of the fact that the distribution account he was aware of had distributed that property amongst the 14 children in equal shares, he engaged the services of legal practitioners to investigate the issue. The investigation by the legal practitioners revealed that the property had actually been transferred into the first respondent’s name in the year 2009. Further revelations were to the effect that the distribution account by Mazvita Wakanaka of September 2001 had in fact not been confirmed. The fourth respondent informed them that the first respondent had objected to it. The objection was apparently submitted on 14 February 2003, a period close to one and half years after Mazvita Wakatama had filed the first and final distribution account. The fifth applicant learnt for the first time from the fourth respondent that Mazvita Wakatama had been delisted as a result of which the first respondent was appointed executrix on 18 March 2005. After being issued with letters of administration the first respondent proceeded to award herself the immovable property in question and obtained transfer into her name in 2009.
The applicants alleged they were never advised of any objection to the distribution account prepared by Mazvita Wakatama and neither were they advised of Mazvita Wakatama’s delisting. In any case, they argued, Mazvita Wakatama was never removed from the office of executor in terms of s117 of the Administration of Estates Act or in terms of any other section of the Act.
The applicants thus argued that the fourth respondent failed to adhere to provisions of s(s) 117(2), s30 (4) and s52 of the Administration of Estates Act when he appointed the first respondent as Executrix Dative before revoking Mazvita Wakatama’s letters of administration and in considering the objections by the first respondent to Mazvita Wakatama’s distribution account which was raised out of time.
The first, the second and the third respondents opposed the application. The respondents raised a point in limine to the effect that the application for review is not properly before this court as the irregularity complained of occurred in 2005 and the applicants only filed this application in 2013. In terms of Order 33 r 259 the application ought o have been filed within 8 weeks from the date of the irregularity complained of.
The applicants on the other hand argued that they became aware of the irregularity much later in October 2012 after which they made inquires and were only informed of what had happened at the end of November 2012. Soon thereafter they proceeded to institute this application.
Rule 259 of the High Court Rules 1971 as amended states that:-
“Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred:
Provided that the court may for good cause shown extend the time.”
Where, however, a party has no knowledge of the irregularity or illegality such period would only start running from the time a party has knowledge.
In Vrystaat Estates (Private) Limited v President, Administrative Court and Others 1991(1) ZLR 323 (SC) at 330B McNALLY JA aptly stated that:-
“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.”
See also Sithole v City of Harare 2002(1) ZLR356 (H) at 358E-F and Edna Songore V Josiah Gweme & 2 others HH 90/2008.
The respondents’ response to the above authority was to the effect that the second, the fourth, the eighth and the ninth applicants were aware of the edict meeting at which she was appointed executrix. By virtue of these four being aware the rest of the applicants must have been aware. Unfortunately that is not as things should be. From the respondents’ own assertion the other applicants were not advised in the way they should have been. Thus even assuming the other four had acquired knowledge and, as contended by the respondents, had attended the meeting at which she was appointed executrix, this did not mean the other applicants had knowledge. I am thus inclined to accept that not all applicants were made aware of the irregularity at the time it occurred. Those who were not aware, who include the fifth applicant, cannot be denied the right to apply for review of the irregular or illegal decision. I am also of the view that the importance of the case, as noted from the papers filed of record by both sides, makes it imperative that court exercises its discretion in favour of hearing the matter on the merits. The review is thus properly before this court.
It may also be noted that the irregularity complained of includes the non removal of Mazvita Wakanaka as executor before the appointment of the first respondent. The question maybe asked whether or not Mazvita was removed in terms of the law from the office of executor? If the answer is in the affirmative the next question is ‘was the first respondent’s appointment done in terms of the law?’ If the answer to the first is in the negative the question becomes ‘what are the consequences of the failure to remove Mazvita Wakatama in terms of the law?’
The respondents’ response to the allegation that Mazvita Wakanaka was not removed according to the law was to the effect that Mazvita Wakanaka was delisted and so effectively ceased to be executor. The fourth respondent also seemed to contend the same. The fourth respondent did not however deny failing to take appropriate steps for the removal of Mazvita Wakanaka in terms of the Act.
The respondents, including the fourth respondent, did not disclose when it is that Mazvita Wakanaka was delisted. None of the respondents tendered any document to confirm such delisting and to confirm the date of delisting.
On the question of failure to comply with the law, s 30(4) of the Administration of Estates Act requires the Master to cancel the letters of administration of an executor whose registration has been cancelled. The section states that:-
“The Master shall revoke letters of administration granted to a person as executor if the Master is satisfied that-
(a) when the letters of administration were granted to him, that person was registered under the Estate Administrators Act [Chapter 27:20] and his registration has subsequently been cancelled or suspended in terms of that Act;
(b) in the case of an executor dative, the person is not the surviving spouse or next of kin of the deceased person and, when the letters of administration were granted to him, he was not registered under the Estate Administrators Act [Chapter 27:20] or his registration under that Act was suspended.”
As noted from his response, the fourth respondent does not seem to have acted in terms of this section.
The next section on the removal of an executor cited is s117 of the Act. That section states that:-
“(1).The Master may apply to a judge in chambers for the removal of an executor, tutor or curator from his office on the ground-
(a) that he was not qualified for appointment to such office or that his appointment
was for any other reason illegal; or
(b) that he has failed to perform satisfactorily any duty or requirement imposed upon
him by or in terms of any law; or
(c) that he is mentally or physically incapable of performing satisfactorily his duties; or
(d) that in his opinion such person is no longer suitable to hold such office;
and the judge may upon such application, remove the executor, tutor or curator
concerned from his office or make such other order as he sees fit.
(2).Where an executor, tutor or curator has been removed from his office the Master
shall revoke any letters of administration or confirmation, as the case may be,
which have been granted to such person.”
From the submissions by the respondents the fourth respondent did not act in terms of this section either. The letters of administration granted to Mazvita Wakatama were never revoked.
The scenario obtaining was thus, that the fourth respondent upon receiving information about Mazvita Wakatama’s delisting proceeded to appoint the first respondent and issued the first respondent with letters of administration. There were thus two executors with letters of administration over the same estate.
In Mutyasira v Gonyora & Another 2007(1) ZLR 318(S) court had occasion to decide a similar case where by a second executor was appointed without the first executor being removed from office. The estate was, as is the case here, governed by customary law. SANDURA JA, at p324, in deciding on whether the second executor’s appointment was valid had this to say:
“I have no doubt in my mind that it was not. That is so because Barbra’s appointment was valid, and she had not been removed from her office in terms of s 117(1) of the Act, which in relevant part reads as follows:
‘The Master may apply to a judge in chambers for the removal of an executor… from his office… and the judge may, upon such application remove the executor…concerned from his office or make such other order as he sees fit.’
As Barbra had not been removed from her office, there was no vacancy, and Kenias appointment was incompetent.”
I am of the view that that is the scenario obtaining here. The Master ought to have acted in terms of s 117 (1) of the Act, if he was of the view that Mazvita Wakanaka was no longer suitable to continue with the administration of the estate. His failure to do so renders the subsequent appointment of the first respondent as executrix incompetent as there was no vacancy in the office of executor for the estate late Eric Shepherd Gore. It follows that what the first respondent did thereafter was a nullity.
It may also be pertinent to point out that if for any reason it had been shown that Mazvita Wakanaka was removed in terms of the law, the manner in which the fourth respondent dealt with this estate raises cause for concern.
The first point to note is that in his report the Master states that prior to the removal of Mazvita Wakanaka as executor, which act as shown above was not done, the distribution plan he had drawn was objected to by the first respondent when it was advertised as lying for inspection. The documents filed of record show that the plan lay for inspection from 26 October 2001 and the objection by the first respondent was filed with the Master on 14 February 2003. I do not think that the Master was seriously suggesting that the inheritance plan in question lay for inspection for close to one and half years. Surely the law did not allow him to let the plan lie for inspection indefinitely or till there was an objection. If Mazvita Wakanaka was still administering the estate as of 14 February 2003, why had the Master not confirmed the inheritance plan submitted in October 2001?
The Master’s failure to act within reasonable time upon the submission of the inheritance plan does not auger well. This is especially so when well after the period the plan was expected to lie for inspection the Master accepted an objection and effected it without consulting other beneficiaries.
Section 68E of the Act is very clear on what is expected of the Master upon the executor submitting the inheritance plan. In particular subsection (2) thereof states that:-
“On receipt of a plan drawn up in terms of sixty-eight D, the Master shall take such steps as he considers necessary or appropriate to satisfy himself that-
(a) the executor has consulted all the members of the deceased’s family and the beneficiaries whom he could with reasonable diligence have consulted, and has obtained the beneficiaries’ agreement to the plan; and
(b) the beneficiaries who have agreed to the plan have done so with the full knowledge and understanding of their rights.”
If satisfied, the Master is expected to approve the plan. If on the other hand he is not satisfied he can, as provided in subsection 3(b) and (c), give directions to the executor.
I am of the view that the above provisions are intended to expedite the administration of the estate and not for an estate to lie for inspection for an indefinite period.
Having received a belated objection on 14 February 2003, the fourth respondent later in 2004 made effort to call for an edict meeting for the appointment of an executor. Unfortunately the letters of invitation submitted by the respondents do not show that all the applicants were being invited. The correspondence tendered seemed to suggest that an officer in the Master’s office had by 14 December 2004 decided that the first respondent should be awarded the Hatfield immovable property. To this effect annexure ‘F’ to the respondents’ Notice of Opposition refers. In that annexure the first respondent is referred to as the surviving spouse and as having shown, through the production of her passport as evidence, how she contributed to the purchase of the house in dispute. Based on entries in that passport the officer opined that the first respondent should be awarded the house. But surely, if Mazvita Wakatama was delisted and no executor was appointed, what was the purpose of this minute? Was it not for the executor to decide, based on the submissions from all family members and beneficiaries, as to who should be awarded the immovable property in question? The apparent bias that seemed to be clipping in was then confirmed by the Master’s appointment of the first respondent as executrix on the 9th February 2005 despite the apparent rivalry within the deceased’s family over the estate.
It was because of the internal family disputes that Mazvita Wakatama had been appointed as a neutral executor rather than one of the family members. That reason had not disappeared. Indeed as noted by Mazvita Wakatama in his letter to the Master dated 28 May 2001, there were two main rival parties, each led by a surviving spouse in this matter.
In casu, what the Master did after sidestepping Wakatama was to appoint a member of one of the surviving spouses from a rival camp to be the executrix. In my view that was ill advised. Such appointment was not conducive to the nature of the consultative process that the law requires in such estates.
As fate would have it respondents did not deny that the first respondent in her administration did not consult other family members and beneficiaries with a view to reaching agreement as required by s 68 of the Act. She simply drew the plan and sought to hide behind the banner of having advertised the estate. Section 68D mandates an executor to consult other family members. In that regard s 68D (2) states that: -
“When drawing up a plan in terms of subsection (1), an executor shall-
(a) pay due regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and
(b) so far as is practicable, consult the deceased person’s family and the beneficiaries and endeavour to obtain the beneficiaries’ agreement to it.”
This, the first respondent did not do or even attempt to do.
The Master on his part is required under s 68E to ensure that the executor has complied with the above provision; unfortunately in this case the Master did not perform his task. Had he done so he would have noted that the first respondent had not consulted other family members and beneficiaries with a view to obtaining their agreement to her draft inheritance plan.
I have alluded to the above to highlight the need for the Master’ office to endeavour at all times to operate above board. As aptly noted by GUVAVA J in The Master v Moyo NO & Others 2009(1) ZLR 119(H) at page 122F-G:-
“The office of the Master is a public office which must, and be seen to, operate in an impartial, credible and transparent manner in order to engender confidence in the mind of the general public.”
In casu, had the Master adhered to the dictates of the law this estate would have been administered by an independent executor to its logical conclusion. Another independent executor could easily have replaced Mazvita Wakanaka upon his lawful removal from office.
It is my view that the appointment of a rival party in a polygamous marriage to administer an estate should be done with great trepidation. In such instances, unless all family members across the polygamous divide agree, an independent executor would be preferable.
The applicant asked for costs on a higher scale against the 1st respondent. The applicant argued that the first respondent was devious in all her dealings regarding the third respondent so that she would solely benefit and so she should bear all the costs on the higher scale. In this regard counsel cited the case of Harare West Rural Counsel v Sabawu 1985(1) ZLR 179 wherein court held that where the respondent has been solely responsible for all the costs incurred in the matter and his misconduct has necessitated the legal steps taken by applicant, then applicant should be liable for costs on a higher scale. He argued that this is the case here. The first respondent on the other hand contended that she should not be penalised with costs on the higher scale as she was misled by the fourth respondent into believing all was in order vis-a-vis her appointment and administration of the estate. Counsel for the first respondent strenuously contended it was not of the first respondent’s own making that this has resulted. The Master was also a participant. If court agreed that the first respondent’s appointment was null and void together with her subsequent actions, then the Master actually misled the 1st respondent. It is because the fourth respondent adopted a wrong procedure that the parties are in court today. He thus concluded by saying that each party should bear their own costs of suit.
Upon consideration of the arguments I am of the view that ordering costs on a higher scale may not be warranted as the first respondent did not impose herself. The fourth respondent was to a great extent to blame for the malaise that befell this estate by not adopting the correct procedure. It is however imperative that upon the anomalies being pointed out the first respondent should not have put up a vicious opposition. The anomalies were so glaring that her legal practitioner ought to have advised her accordingly. In that sense the first respondent will be ordered to pay applicant’s costs on the ordinary scale
In conclusion I am of the view that in light of the above the application be granted as amended.
Accordingly it is hereby ordered that –
- The appointment of the first respondent as the executrix of the Estate Late Eric Shepherd Gore on 18 March 2005 be and is hereby declared null and void and is hereby set aside;
- The transfer of the late Eric Shepherd Gore’s Immovable property, namely, the Remaining Extent of subdivision A of Lot 34 of Hatfield Estate situate in the district of Salisbury to the first respondent be and is hereby declared null and void and therefore set aside;
- The fifth respondent be and is hereby directed to cancel Deed of transfer no. D/T 2215/2009 in the name of the first respondent and to reinstate Deed of Transfer No. 2214/2009 in favour of Estate of the Late Shepherd Eric Gore.
- The first respondent shall pay the costs of this suit on the ordinary scale.
Mawere & Sibanda, applicant’s legal practitioners.
J Mambara & Partners, 1st, 2nd and 3rd respondents’ legal practitioners.
