Court name
Supreme Court of Zimbabwe
Case number
SC 80 of 2006
Civil Appeal 144 of 2006

Mutyasira v Gonyora and Another (44/06) (SC 80 of 2006, Civil Appeal 144 of 2006) [2007] ZWSC 80 (27 May 2007);

Law report citations
Media neutral citation
[2007] ZWSC 80













REPORTABLE ZLR
(65)


Judgment
No. SC 80/06


Civil Appeal No. 144/06








KENIAS
MUTYASIRA v





(1) BARBRA
GONYORA (2) THE MASTER OF THE HIGH COURT








SUPREME COURT OF
ZIMBABWE


SANDURA JA, ZIYAMBI
JA & MALABA JA


HARARE, SEPTEMBER 11,
2006 & MAY 28, 2007








I E G Musimbe,
for the appellant





G C Chikumbirike,
for the first respondent





No appearance for the
second respondent






SANDURA JA: This is an appeal against a judgment of the High
Court which nullified the appointment of the appellant (“Kenias”)
as the executor dative of the estate of the late Muchineripi Rishon
Gonyora (“the deceased”), and confirmed the appointment of
the
first respondent (“Barbra”) as the executrix dative.





The factual
background is as follows. In 1976 the deceased married Barbra in
terms of the African Marriages Act, Chapter 238 (now the
Customary Marriages Act [Cap. 5:07]). Three children,
Roy, Yvone and Sandra, were born of the marriage. The deceased had
two other children from a previous marriage.





The deceased died in
Harare on 13 August 2002 and Barbra had the deceased’s estate
registered at the Harare Magistrates Civil
and Customary Law Courts.





On 17 October
2002 an edict meeting was held and was presided over by the
provincial magistrate, Mr V Ruombwa (“the
magistrate”).
The meeting was attended by Barbra and two of her children, and by
the deceased’s brother.





At the end of that
meeting Barbra was appointed the executrix dative and a document to
that effect was issued to her by the magistrate,
setting out her
duties, which included ascertaining and verifying the assets and
liabilities of the deceased, preparing a plan of
how the deceased’s
estate was going to be distributed among the beneficiaries, and
presenting that plan to a magistrate for approval.





Also issued to Barbra
on 17 October 2002 was a letter addressed to Barclays Bank,
where the deceased had an account, stating
that Barbra had been
appointed the executrix dative of the deceased’s estate, and
requesting the bank to furnish her with a bank
statement showing the
balance on the deceased’s account in order to facilitate the
administration of the estate.





Subsequently, on
25 August 2005, when no distribution plan had been presented to
a magistrate, the second respondent wrote
to Barbra requesting her to
attend a special meeting on 30 August 2005 to discuss all
matters concerning the estate. She and
the other beneficiaries of
the estate attended the meeting. At the end of that meeting the
second respondent appointed Kenias as
a curator bonis in the
estate.





Thereafter, on
28 September 2005 the second respondent, purportedly acting in
terms of s 25(1) of the Administration of
Estates Act
[Cap. 6:01] (“the Act”), gave notice of an edict
meeting to be held at his office in Harare on 5 October 2005.
The notice, which
was supposed to be gazetted before 5 October
2005, was gazetted on 7 October 2005, two days after the meeting
was held.
Nevertheless, Barbra and the other beneficiaries of the
estate attended the meeting as they had been notified of the meeting
by
other means.





However, what
happened at that meeting is not common cause, although it is common
cause that at the end of the meeting Kenias was
appointed executor
dative. Thereafter, Kenias embarked upon his duties.





About three weeks
later, on 28 October 2005, Barbra filed a court application in
the High Court (Case No. HC 5567/05)
against Kenias and the
second respondent, seeking the nullification of the appointment of
Kenias as the executor dative of the deceased’s
estate, and the
confirmation of her own appointment as the executrix dative.





Thereafter, Kenias
attempted to sell some of the assets of the estate, with the second
respondent’s concurrence, in order to meet
certain financial
obligations of the estate. That prompted Barbra to file an urgent
chamber application in the High Court on 16 January
2006 (Case
No. HC 221/06) against Kenias and the second respondent, seeking
a provisional order, with the final relief sought
being the same as
that sought in Case No. HC 5567/05, and interim relief in the
form of an interdict restraining Kenias from
disposing of any of the
assets belonging to the estate.





The urgent chamber
application was heard on 25 January 2006, and an order was
granted with the consent of the parties. The
order, inter alia,
consolidated Case No. HC 5567/05 and Case No. HC 221/06,
and interdicted Kenias from winding up the estate pending the
determination of Case No. HC 5567/05.





The two consolidated
cases subsequently came before the learned Judge in the court a quo
on 19 May 2006. Kenias’ appointment as the executor dative
was declared null and void, whilst Barbra’s was declared valid.

Aggrieved by that result, Kenias appealed to this Court.





There are three main
issues to determine in this appeal. The first is whether the court
application, i.e. Case No. HC 5567/05,
was a review application
disguised as an application for a declaratory order. The second is
whether Barbra’s appointment as the
executrix dative of the
deceased’s estate was valid. And the third is whether the
appointment of Kenias as the executor dative
of the estate was valid.
I shall deal with the issues in turn –






WHETHER THE COURT APPLICATION WAS A REVIEW APPLICATION






This issue is important because if the answer is in the affirmative
then, in terms of r 259 of the High Court Rules, 1971,
the
application should have been instituted within eight weeks after the
appointment of Kenias as the executor dative of the estate.





The learned Judge in
the court a quo came to the conclusion that the court
application was not a review application disguised as an application
for a declaratory order.
In his judgment he said the following:






“It is clear to me that it is not a review; she has not sought to
impugn the procedural steps that the first respondent took to
appoint
the second respondent. She simply says that she had been appointed
and had not been removed. Therefore the latter appointment
should
be declared a nullity, her appointment be confirmed and consequential
relief that flows from that declaration be granted in
her favour.”






I entirely agree with
the learned Judge. The application was not concerned with the
decision-making process which led to the appointment
of Kenias as the
executor dative. Instead, it was concerned with the appointment
itself which was allegedly null and void, and
Barbra sought a
declaratory order to that effect, as well as consequential relief
flowing from that declaration.






WHETHER BARBRA’S APPOITMENT WAS VALID






This question was answered by the learned Judge in the affirmative.
In my view, the learned judge was correct.





The argument that was
advanced on behalf of Kenias was that ss 23 and 25 of the Act apply
to the estates of all persons, including
persons subject to customary
law, and that as Barbra was not issued with letters of administration
in terms of s 23 of the Act
her appointment was invalid.





I shall set out the
relevant provisions of both sections –





Section 23 of
the Act reads as follows:






“The estates of all persons dying either testate or intestate
shall be administered and distributed according to law under letters
of administration to be granted in the form B in the Second
Schedule by the Master to the testamentary executors duly appointed
by such deceased persons, or to such persons as shall, in default of
testamentary executors, be appointed executors dative to such
deceased persons in manner hereinafter mentioned.”






And s 25(1) reads
as follows:






“When any person has died without having by any valid will or
codicil appointed any person to be his executor, or where any person
duly appointed to be the executor of any deceased person has
predeceased him or refuses or becomes incapacitated to act as such,
or within such reasonable time as the Master considers sufficient,
neglects or fails to obtain letters of administration, then and
in
every such case the Master shall cause to be published in the
Gazette, and in such other manner as to him seems fit, a
notice calling upon the surviving spouse, if any, and the next of
kin, legatees
and creditors of the deceased to attend at his Office,
at the time therein specified, to see letters of administration
granted to
such person or persons as may then be appointed by him
executor or executors, to the estate of such deceased person.”






It is pertinent to
note that ss 23 and 25 are in Part III of the Act, which is
headed “Estates of Deceased Persons”.
It is also pertinent to
note that Part III A of the Act is headed “Estates of
Persons Subject to Customary Law”.
What this means is that
Part III of the Act governs the estates of persons who are not
subject to customary law, i.e. those
governed by the general law of
the land; whilst Part III A governs the estates of persons
subject to customary law.





It was common cause
that the deceased’s estate was governed by customary law. That
being the case, it follows that the deceased’s
estate is governed
by Part III A and not by Part III of the Act.





As ss 23 and 25 of
the Act are in Part III, which does not govern the estates of
persons subject to customary law, the provisions
of both sections do
not apply to the deceased’s estate. No letters of administration
were, therefore, required in respect of
Barbra’s appointment, which
was made in terms of s 68B of the Act.





Section 68A,
which is in Part III A of the Act, reads as follows:






“(1) Subject to subsection (2), this Part (i.e. Part III A)
shall apply to the estate of any person to whom customary
law applied
at the date of his death.





(2) This Part, other
than section sixty-eight C, shall not apply to any part of an
estate that is disposed of by will.”






And s 68B, which
is in the same Part of the Act as s 68A, in relevant part reads
as follows:






“(1) Upon the death of a person referred to in subsection (1)
of section sixty-eight A, the Master shall summon
the
deceased person’s family, or such members of the family as are
readily available, for the purpose of appointing a person to
be the
executor of the deceased person’s estate.





(2) The Master, with
the concurrence of the relatives present at a meeting summoned in
terms of subsection (1), shall appoint
a person to be the
executor of the estate of the deceased person referred to in that
subsection:





Provided that –






(i) if the relatives are unable to agree upon a person to be
appointed as executor, the Master shall appoint a person as provided
in section twenty-six, which section shall apply, mutatis
mutandis
, in relation to any such appointment;





(ii) no person shall be
appointed as executor under this subsection unless he is -






(a) registered under the Estate Administrators Act [Chapter 27:20];
or





(b) a member of the
deceased person’s family.”







In terms of s 68(1), the definition section in Part III A
of the Act, “Master” includes a magistrate or other
person
designated by the Minister of Justice, Legal and Parliamentary
Affairs in terms of s 68I; and “executor” means a
person
appointed as executor of an estate in terms of s 68B.





In the circumstances,
bearing in mind the factual background in this matter, and the
provisions of ss 68(1), 68A and 68B, already
set out in this
judgment, there can be no doubt that Barbra’s appointment was
valid.





I say so for the
following reasons –






At the time of his death the deceased, who died without leaving a
will, was a person to whom customary law applied. In terms of
s 68A(1) his estate was governed by Part III A of the
Act.






After the deceased’s
death the Master, as defined in s 68(1), summoned the deceased’s
family to a meeting for the purpose
of appointing an executor dative
for the deceased’s estate, as he was obliged to do in terms of
s 68B(1).





Thereafter, at the
meeting held on 17 October 2002, the Master, with the
concurrence of the deceased’s family, appointed
Barbra the
executrix of the deceased’s estate, and issued to her a document
stating that fact, and setting out her duties. In
addition, she was
given a letter addressed to the deceased’s bank which I have
already mentioned in this judgment.





Finally, as already
stated, Barbra did not require letters of administration before she
administered and distributed the deceased’s
estate, because the
estate was governed by Part III A of the Act.






WHETHER KENIAS’ APPOINTMENT WAS VALID






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.





Finally, as far as
the costs of this appeal are concerned, I see no reason for departing
from the principle that as a general rule
the successful party is
entitled to his costs.





In the circumstances,
the appeal is devoid of merit, and is dismissed with costs.








ZIYAMBI  JA:
I agree.








MALABA JA: I
agree.








I E G Musimbe &
Partners
, appellant's legal practitioners


Chikumbirike &
Associates
, first respondent's legal practitioners