Court name
Supreme Court of Zimbabwe
Case number
SC 5 of 2003
Civil Appeal 197 of 2002

Pasalk and Another v Kuzora and Others (97/02) (SC 5 of 2003, Civil Appeal 197 of 2002) [2003] ZWSC 5 (09 March 2003);

Law report citations
Media neutral citation
[2003] ZWSC 5


DISTRIBUTABLE (5)

















Judgment
No. S.C. 5\03


Civil
Appeal No. 197\02

















(1)
KARL PASALK (2) ELIZABETH PASALK v (1) ADELLAH
KUZORA (2) CECIL MADONDO (3) THE MASTER
OF THE
HIGH COURT











SUPREME
COURT OF ZIMBABWE


ZIYAMBI
JA, MALABA JA & GWAUNZA JA


HARARE
FEBRUARY 3 & MARCH 10, 2003








L.
Mazonde
, for the appellants





D.
Foroma
, for the first respondent









ZIYAMBI JA: This is another
instance in which a legal practitioner has done a disservice to his
clients.






The background facts are as
follows. The appellants are major children of the late Detliev
Pasalk who died in 1995. Prior to the
distribution of the estate,
three vehicles forming part of the deceased estate were given to the
appellants as part of their inheritance,
it being the understanding
of the executor, that the appellants were the only heirs to the
deceased estate.









Then in 1998 the first
respondent, who had lived with the deceased from 1982 until his death
in an unregistered customary union, obtained
an order from the High
Court declaring her a partner in a universal partnership between
herself and the late Detliev Pasalk and ruling
that she was entitled
to one half of the joint estate acquired by them from 1982 until the
date of his death. The second respondent
then sought directions
from the Master of the High Court who directed the distribution as
per his letter which reads in part as follows:-






“The
essence of Chinhengo J’s judgment is that we put together the
values of both movable and immovable properties, divide the total
by
two, this will give us Adella Kuzora’s 50% which should not come
into this estate.






Put
simply:





Value
of immovable property $474 500


Add
value of movables $645 440


Total
$1 119 940





50%
to Adella Kuzora $1 119 940 : 2


$559
970





I
take note of the fact that the 3 vehicles namely the Mercedes Benz,
Usuzu Trooper and Nissan Pick Up Truck were requested and made
available to the two Pasalk children namely Karl and Elizabeth. In
the same vein Adella has always had possession and occupation
of the
house. The said house is valued at $474 500. I therefore rule
that it is only fair that Adella be allowed to take the
immovable
property as part of her 50% share plus other movable assets of her
choice from the list as provided by Tony West.





Having
said that I now turn to the distribution in the estate of Late
Detliev Pasalk. Karl and Elizabeth have already accessed and
used
the motor vehicles. In other words they have already accessed part
of their inheritance. Therefore the vehicles which were
made
available to Karl and Elizabeth are awarded to them as part of their
inheritance subject of course to the satisfaction of the
maintenance
claim by Adella Kuzora and her children.





As
regards the Mubayira, Hatcliff and Mufakose properties I note that
Chinhengo J made a finding in his judgment that there was no
basis
upon which the said properties could be brought into the estate. I
find no reason why I should entertain the same issue that
has already
been decided by the High Court.





Finally
and in brief the following is directed:-






(a) That the values placed on the
movables and immovable properties by Tony West Real Estate be
accepted for purposes of winding up
this estate.





(b) That
the immovable property Lot 232A Highlands be awarded to Adella Kuzora
as part of her 50% share holding in the Universal Partnership.





(c) That
the 3 motor vehicles namely Isuzu Trooper, Nissan Truck and Mercedes
Benz be taken as part of the estate of Detliev Pasalk
but for
purposes of distribution of this estate, the said vehicles are
regarded as having been awarded to Karl and Elizabeth.






Any other assets that do not form
part of Adella’s 50% in the Universal Partnership should be brought
to account with values as
at the date of death.”









The appellants, aggrieved by the
award of the house to the first respondent as her half share of the
property, filed a court application
to the High Court seeking that
the Master’s decision be set aside and that the appellants be
registered as “joint undivided owners
with the first respondent of
the immovable property”.






The founding affidavit was
deposed to by a legal practitioner who stated that he is a senior
partner in the firm of legal practitioners
which represents the
appellants and that he was authorised to attest the affidavit “and
make application to this Honourable Court
for a review of the
decision of the Master on a point of law in terms of section 113 of
the Administration of Estates Act [Chapter
6:01]. This section
provides:-





“Whenever
any difference of opinion upon a question of law arises between the
executor and the Master in the distribution of an estate
and a minor
is interested in the decision of that question, the Master and the
executor may state a case in writing for determination
by a judge of
the High Court in chambers, and the determination of the judge shall
be binding upon the Master and the executor, without
prejudice to the
rights of other persons interested in the distribution:






Provided that the judge may refer
the matter to the High Court for argument.”










It will be noted that it is the
Master and the executor who are given standing to approach a judge of
the High Court in chambers where
they disagree upon a question of
law. Further, the section applies where a minor is interested in the
decision of that question
of law. The legal practitioner clearly
did not apply his mind to the issues involved. Even a cursory
reading of the section quoted
above would have revealed to him that
the appellants did not fall within the ambit of that section. In
short, his clients had no
locus standi to approach the court
in terms of the section. If, then, he was minded to seek a review in
terms of the High Court Rules, it was
incumbent on him to comply with
the requirements of the rules relating to reviews.









Rule 257 of the High Court
Rules, 1971(‘the Rules’) provides as follows:-







“257.
Contents
of notice of motion







The court application shall state
shortly and clearly the grounds upon which the applicant seeks to
have the proceedings set aside
or corrected and the exact relief
prayed for.”









No
grounds of review were stated in the court application or in the
founding affidavit. The deponent (the legal practitioner),
described
the first respondent as an intestate heir to the deceased
estate having been declared a “universal heir” and requested the
court
to apply the “law of intestacy by finding that the respondent
is entitled to a 50% award of the assets in the deceased estate”.

The first respondent was in fact declared a partner (not an heir) in
the universal partnership. Her customary union with the late
Pasalk
not having been registered, she could not inherit from his estate on
intestacy.






In supplementary heads of
argument filed with the consent of the Court the appellants advanced
a totally different argument, namely
that the issue was the
dissolution of the partnership and the Master had acted unlawfully in
distributing the estate before the
partnership was dissolved.
Paragraphs 4 and 5 of the appellants’ supplementary heads of
argument submitted to the High Court read
as follows:-






“4. It is respectfully
submitted that the basis of the application is that the Third
Respondent acted contrary to law when he allocated
a house to the
First Respondent. By reason of that misdirection at law, it is
respectfully submitted that the decision of the Third
Respondent is
not only tainted with illegality in that the Master was guilty of an
error in law, but was also irrational in the sense
that it is so
outrageous in its defiance of logic or of accepted standards that no
sensible person who had applied his mind to the
question to be
decided could have arrived at it. See Secretary for Transport &
Anor v Makwavarara
1999 (1) ZLR 18 (SC) at 20 B-C; Tapfumaneyi
v Cotton Co of Zimbabwe & Ors
S-140-97.





5. What
was involved in casu was dissolution of a partnership by
death. The authorities are clear:-




‘On dissolution the partners
(and, in the case of death, the executor of the deceased partner’s
estate) have a right to wind up the
partnership affairs. … No
partner has the right to retain possession of any of the partnership
assets, nor to dispossess co-partners
or partnership property.’










It is not surprising, then, that
in the court a quo the respondent successfully took the point,
in limine, that the application was fatally defective for want
of compliance with Rule 257 of the Rules, in that no grounds of
review had
been averred by the appellants in their founding
affidavit. Indeed, it is clear that the deponent to the founding
affidavit had
no appreciation whatsoever of the fact that he was
dealing with the dissolution of a partnership. The learned Judge
found that the
averments in the founding affidavit were “totally
divorced” from those in the supplementary heads of argument. A
belated request,
by counsel who appeared for the appellants at the
hearing, for condonation of his instructing legal practitioner’s
failure to comply
with the rules, found no favour with the learned
Judge who gave, at page 57 of the record, her reason for declining
the request:-





“The
basis of asking the applicant to clearly state the basis upon which
he seeks a review of any proceedings is to enable the respondents
to
be in a position to answer adequately to the issues raised and the
court to determine the basis of the challenge. Clearly this
was not
done in this case.






In
my view the court cannot in these circumstances condone the
non-compliance of the rules”.









This was an exercise by the trial
court of its discretion conferred on it by Rule 4C of the Rules which
provides as follows:







“4.C The court or a judge may,
in relation to any particular case before it or him, as the case may
be –







(a) direct, authorize or condone
a departure from any provision of these rules, including an extension
of any period specified therein,
where it or he, as the case may be,
is satisfied that the departure is required in the interests of
justice;”







The learned judge having given
consideration to the matter was of the view that this was not a case
where she could condone the departure
from the rules.







It
is trite that this Court will not interfere with the exercise by a
trial court of its discretion unless it is
satisfied
that the manner in which the discretion was exercised was so
unreasonable as to vitiate the decision reached.




The appellants submitted in
their heads of argument before this Court, that this was an
injudicious exercise of the learned Judge’s
discretion entitling
this court to interfere with the decision arrived at. I do not
agree. It is not for the respondent, or the
court, to study the
affidavits carefully in order to determine what case the respondent
is to answer. The grounds of review must
be clearly and shortly
stated, and, in my view, this must be in the court application itself
or, at the commencement of the founding
affidavit. Rule 257, before
it was amended, required those grounds to be contained in the notice
of motion which is indicative of
the intention of the draftsman that
the grounds of review must be readily apparent at the commencement of
the application. (See Rule
257 of the High Court Rules, 1970).









This Court has time and time
again cautioned legal practitioners to exercise more care in the
presentation of review applications.
See Ministry of Labour &
Ors v PEN Transport (Pvt) Ltd
1989(1)ZLR 293 (SC) at p 296;
Stanley Mtetwa v Rejoice Moyo and O.K. Bazaars HC-H 222/89;
Hall v Director of Civil Aviation HC-H 38/89; Art Printers
Ltd v The Regional Hearing Officer and Joaquim Moyana
HC-H
168/87.





Legal
practitioners are warned that they risk not only being non-suited but
also being ordered to pay costs de bonis propriis in cases
where they have failed, as in this case, in their duty to advise
their clients correctly or in the correct presentation
of
applications to the Courts to the detriment of their clients.






Mr Mazonde, who appeared
for the appellants, confessed his difficulty in supporting the
appeal. This is understandable in view of its obvious
lack of
merit.






Accordingly
the appeal is dismissed with costs.























MALABA
JA: I agree.




















GWAUNZA
JA: I agree.























Coghlan
Welsh & Guest
, appellants’ legal practitioners





Saywer
& Mkushi
, first respondent's legal practitioners