Court name
Supreme Court of Zimbabwe
Case number
SC 27 of 2008
Civil Appeal 331 of 2006

Kadengu and Others v Kadengu and Others (SC 27 of 2008, Civil Appeal 331 of 2006) [2009] ZWSC 27 (18 January 2009);

Law report citations
Media neutral citation
[2009] ZWSC 27

DISTRIBUTABLE
22








Judgment
No. SC 27/08


Civil
Appeal No 331/06








(1)
JOSHUA KADENGU (2) LAMECK KADENGU (3) ROSA
KADENGU v (1) OLGA KADENGU (2) RICHARD

JOHN CHIMBARI (3) MASTER OF THE HIGH
COURT








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GARWE JA


HARARE,
MAY 5, 2008 & JANUARY 19, 2009








H
Zhou
, for the appellants


G
Mhlanga
, for the respondents









ZIYAMBI JA: The late Job Bruno Kadengu died testate on
25 March 1990. His will contained the following clauses:



“2. The expression “Executors” or “Executor”
wherever used in this Will mean either Executors or Administrators or
Trustees or any two or all of these offices as may be appropriate in
the circumstances and in the context thereof and the term “Executors”

includes the singular and the term “Executor” includes the
plural.







5. My Executor shall take possession of all my
property, whether movable or immovable of whatsoever nature and sort
and wheresoever
situate and whether the same be in possession,
reversion, remainder or expectancy, and after paying thereout all my
just debts
and taxes payable by reason of my death and the expenses
of the administration of my Estate, then he shall pay and apply the
same
as hereinafter directed.







6. I hereby direct that my Executor shall purchase a
house in the northern suburbs of Harare and I desire that such house
be large
enough and commodious enough in the discretion of my
Executor to comfortably accommodate my wife, OLGA, and any dependent
children
born of me and my said wife who may survive me. I hereby
give and bequeath to my said wife the said house as a special legacy.

I further give and bequeath to my said wife as a special legacy (or
special legacies) all the household furniture and effects
of which I
may die possessed and effects of which may, at the time of my death,
be situate in the residential property where my
said wife and I may
be living as at the date of my death. The legacies referred to in
this paragraph shall be conditional upon
my said wife, OLGA,
surviving me for a period in excess of thirty (30) days.







7. I record that I own a certain farming property
situate near Rusape. Provided that my mother shall survive me for a
period in
excess of (30) thirty day and provided that I still own the
said farming property as at the date of my death, I hereby give as
special legacies to my mother all the farming implements, live-stock
and other movables which may belong to me at my death and which
may
be situate on the said farm as at the date of my death. I further
hereby give and bequeath to my said mother a life usufruct
in respect
of the said immovable farming property but subject to the provisions
contained in the immediately subsequent paragraph
hereof pertaining
to my sister, ROSA CHIMAMBO. I direct that the
dominium
in the said farming property shall be assumed and taken by my Trustee
appointed hereunder who shall deal with the same as directed

hereunder.







9. After discharging my debts and taxes and paying the
legacies and providing for the aforesaid usufruct and generally
dealing with
my directives detailed hereinabove, my Executor shall
sell and liquidate and turn into cash the entire balance of my Estate
and
my Executor shall hold the resultant monies in his own name as
Trustee of a Trust Fund and he shall apply the income and capital

thereof as hereinafter directed. The successor in office as Trustee
of my Trust Fund shall be the Senior Partner for the time
being of
the said Messrs Gollop & Blank.







10. My Executor, as Trustee, in such manner as he shall
in his absolute discretion from time to time think fit, pay and a
pply
the income of my Trust fund to or for or towards, the benefit,
maintenance, education and advancement of my said wife, OLGA,
my said
mother and any and every child born of my union with my previous wife
and any and every child born of my union with my
said wife, OLGA,
and, without derogating from the generality of the aforegoing the
following persons;
viz







The appellants were among the persons listed under
paragraph 10.







It is common cause that Gregory Slater who was appointed
executor of the will failed to complete the administration thereof
before
he fled the country on allegations of misappropriation of
funds and that
Messrs Gollop and Blank
renounced their appointment as executors and trustees of the estate
on 5 September 1997. The assets of the estate were given as
4 000
shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land
in the district of Makoni called Alloa Farm.







The Master, in an attempt to speed up the administration
of the estate, on 2 July 1999 appointed the second respondent as
executor
dative of the estate. It seems that the second respondent
was unable to remedy the problems left unresolved by Slater and, on

28 September 2000, the first and the second appellants wrote to the
Master complaining of the second respondent’s inaction and
his
failure to wind up the estate in accordance with the wishes of the
testator. The letter did not achieve the desired result
and on 24
March 2003 the appellants made an application to the High Court
seeking the following order:







“IT IS ORDERED THAT:








  1. The Trust which was to be set up in terms of Clause 9
    of the Will be and is hereby abandoned.









  1. The deceased’s 4 000 shares in Paradise Park Motel
    (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.








3. A large enough and commodious enough house shall be
purchased for the first Respondent and her minor children from the
proceeds
of the sale of Paradise Park Motel (Pvt) Ltd. The Master of
the High Court (the third respondent) shall determine whether the
house
which the estate shall be purchasing for the first respondent
and her children is ‘large enough and commodious enough’.







4. After purchasing the house described above for the
first respondent and her children, the residue shall be equally
distributed
among the surviving beneficiaries. The shares of the
beneficiaries who are outside the country or who are not part (
sic)
to these proceedings shall be … (illegible).







5. The immovable property situate in Makoni District,
namely Alloa Farm, held under Deed of Transfer 7689/81 shall not be
sold.
It shall be retained as the family home to be registered in all
beneficiaries names or to be registered in the name of the nominated

beneficiary in trust for the rest of the beneficiaries”.











It was their contention that the intention of the
testator as expressed in clause 9 of the will could no longer be
implemented because
of the abdication of Slater and the renunciation
by
Gollop & Blank.
They alleged that they could not agree on a suitable substitute and
in any event some of the beneficiaries could not be located
while
others were resident outside Zimbabwe.







On 23 July 2003 the appellants obtained a default
judgment in the terms set out above. This order was, however,
rescinded by consent
and the matter was argued before the court
a
quo
.







The second respondent, the executor dative alleged that
the estate was illiquid making it impossible for him to discharge his
mandate.
It was his view that the ownership of the 4 000 shares
should be determined before the estate could be wound up. The three
issues
argued by the parties before the court
a
quo
were as follows –




1. Whether or not the estate can no longer be wound up
in terms of the will because some clauses have become irrelevant;







2. Whether or not the 4 000 shares in Paradise Park
Motel (Pvt) Ltd form part of the deceased’s estate; and







3. Whether or not Alloa farm can still be dealt with in
terms of the will.







The application was dismissed by the court a
quo
primarily on the grounds that the
appellants had no
locus standi
to bring such an application. In this regard the learned Judge said:



“It seems to me however, that a more fundamental
point, which unfortunately was not addressed, arises. It is whether
or not the
applicants have
locus standi,
that is, a direct and substantial interest in seeking variation or
rectification of the will.”











And later at p 6 of his judgment:



“It seems to me therefore that the applicants in
casu
are obliged to show the direct and
substantial interest that they have in the subject matter before me
of seeking the variation
of certain clauses of the will. In terms of
the will they are residuary heirs. They will only be able to benefit
from the will
after clause 9 thereof has been fulfilled.”











The court a quo,
though alive to the fact that neither party had been given the
opportunity to make submissions on this issue, yet proceeded to

decide the matter on an issue not raised during the hearing and
addressed by the parties. In so doing the learned Judge misdirected

himself. It was imperative that the issue was fully canvassed and
investigated.







As it was said in Middleton v
Carr
1949 (2) SA 374 (AD) at pp 385-6 of the
judgment:



“… as has often been pointed out, where there has
been full investigation of a matter, that is, where there is no
reasonable ground
for thinking that further examination of the facts
might lead to a different conclusion, the court is entitled to, and
generally
should, treat the issue as if it had been expressly and
timeously raised. But unless the Court is satisfied that the
investigation
has been full, in the above sense, injustice may easily
be done if the issue is treated as being before the Court.”











The issue was not before the court a
quo
and in the absence of a full
investigation thereof the court erred in treating the issue as one
which was before it. Clearly there
was a real chance of an injustice
being done to the appellants against whom the finding was made.







In any event it would seem to me that the appellants, as
beneficiaries under the will, would have a legal and substantial
interest
in the proper administration of the estate since a proper
administration of the estate would ensure the protection of their
inheritance.
Their interest is, in my view, sufficient to give them
locus standi in judicio
in any matter relating to the proper administration of the estate.







I would therefore allow the appeal on this ground. But
that is not the end of the matter for the court went on to decide the
issues
before it and found against the appellants on all three
issues. I turn to consider the appeal against the court’s finding
on
the merits of the application.







The first and second issues which fell for decision by
the court
a quo may
conveniently be dealt with together. They are, whether or not the
estate could no longer be wound up in terms of the will because
some
of the clauses have become irrelevant; and whether Alloa farm could
no longer be dealt with in terms of the will.







Mr Zhou’s submission,
as I understand it, is that clause 3 of the will which nominated
Gollop & Blank as
Executors and Trustees has been overtaken by events by virtue of that
firm of legal Practitioners having renounced its appointment
as
executors and trustees under the will. It was submitted further that
with reference to clause 9 of the will, the appointment
of a trustee
was now a practical impossibility since the will envisaged the
appointment of
Messrs Gollop & Blank
as Trustees and the second respondent, being an executor appointed by
the Master, cannot assume the office in terms of the will.
Further,
the will itself makes no provision for the appointment of any other
person as trustee in the event that the appointed
firm fails to take
up the appointment for any reason. The deceased, it was submitted,
had specifically appointed his executors
to be the trustees as he was
clear as to who the executors were. There was nothing in the will, so
it was submitted, that supports
the conclusion that an executor
dative would be entitled to become the trustee since the executor
dative was not nominated by the
testator but by the Master.







A reading of clauses 2 and 4 of the will would appear
to support the submission on behalf of the respondents that a person
other
than
Gollop & Blank
was envisaged by the testator as being his executor and/or trustee.
For instance reference is made to an accountant as being a
possible
executor or trustee:



“Any executor of this my will or any trustee of any
Trust Fund hereinafter created who is by a (
sic)
profession a legal practitioner or conveyancer or accountant or
notary may charge the estate or any such Trust Fund …”.











However, that having been said, an executor appointed
by the Master cannot by virtue of that appointment assume the
position of
trustee or administrator of the estate. If he is to act
as an administrator he must be appointed as such by the court. See
Ex
parte Atherstone
, 1942 CPD 559; L
Ferera (Pvt) Ltd v Vos, N.O & ORS,
1953
(3) SA 450 (A.D) at 463E-464A.







Thus where an executor has renounced his appointment
under a will, the Master is empowered by the Administration of
Estates Act
[
Cap 6:01],
to appoint an executor whose duties are as set out in that Act,
namely, to bring in the assets of the estate, file a liquidation
and
distribution account and to account to the Master for the assets of
the estate as set out in that account.







However, the Master has no power to appoint a trustee so
that if a trustee appointed in a will has renounced his appointment,
or
the trustee is incompetent or, having been appointed, is for some
reason no longer acting or, if a testator has created a trust
but
failed to appoint a trustee, only the Court in the exercise of its
inherent power to appoint, control and remove trustees can
appoint a
trustee to administer the estate in accordance with the wishes of the
testator as set out in the will. The Court will
exercise this power
in order to enable the trust to be continued. See
Ex
parte Davenport & Anor
1963 (1) SA 728 (SR) at 731;
The Master v
Edgecombe’s Executors 191
0 TPD
263 at 269-270;
Port
Elizabeth Assurance Agency& Trust Co. Ltd
v Estate Richardson
1965 (2) SA 936 (C.P.D)
at 938C-939D.






It is evident from the above that there is a distinction
in our law between an executor and a trustee. In the case of
The
Master v Edgcombe’s Executors and Administrators supra, at 274,
INNES CJ remarked as follows:



“The distinction between an executor and an
administrator (now “trustee’) is well known in our law. The
executor realizes the
estate, reduces it into possession and accounts
for it to the Master. When he has discharged his duties the
administrator (trustee)
(if one has been appointed) steps in and
administers the fund, which the executor has realized in accordance
with the terms of
the will.”











See also The Law of Succession in
South Africa by Corbett et al
at p 414 where
the authors say:



“Not infrequently, a testator appoints the same person
to be both executor and trustee (or administrator) of the estate.
There is
no objection to this, but it must be emphasized that the two
offices are quite separate and distinct under our law and the person

who will be appointed to both will be required to act in two
different capacities.”







In the instant case, once the executor has completed
his duties in terms of the Act the Master, or the beneficiaries, may
apply
to the court for the appointment of a trustee to administer the
estate in terms of the will.







With regard to Alloa Farm, there is nothing on record
from which I can conclude that the intention of the testator
regarding the
farm as expressed in the will cannot be implemented. I
would, accordingly, agree with the learned Judge that clause 9 of the
will
is capable of implementation.







I turn to the final issue which is whether the 4
000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased
estate.
The learned Judge dealt with the matter thus:



“The applicants referred to affidavits by the first
respondent in which she stated that the shares belonged to the
estate. They
also attached the First Interim Liquidation and
Distribution Account laid for inspection on 4 December 1992 and the
subsequent
First and Final Liquidation and Distribution Account of 1
November 1996 in which the shares are reflected as being assets
belonging
to the estate as proof that they are estate property.







In paragraph 13 of the Founding Affidavit the applicants
aver that the shares belong to the Estate. In response in her
opposing
affidavit the first respondent averred that those shares in
Paradise Park Motel (Pvt) Ltd had not been paid for at the time the

testator died and that he never owned them. She then goes on to
state that they never became part of the estate.







Apparently the sellers of the shares invited interested
beneficiaries to participate in Paradise Park Motel(Pvt) Ltd. None
was
interested save the first respondent who negotiated transfer to
herself and who took transfer.







In their answering affidavit the applicants insisted
that the shares form part of the estate, no doubt on the basis of the
earlier
statements on oath to this effect by the first respondent.
The applicants did not dispute the averment that the letter of 23
April
2002 by Messrs Gill, Godlonton & Gerrans was written in
response to the one by their then erstwhile legal practitioners
Messrs
Musunga & Associates over the transfer of an immovable
property associated with Paradise Park Motel (Pvt) Ltd. This letter

on page 74 of the record indicated that the agreement referred to was
entered into between Auto Export/Import (Pvt) Ltd and Auto

Import/Export (Pvt) Ltd as purchaser and that transfer could only be
effected to Paradise Park Motel (Pvt) Ltd and not the estate.







The applicants did not lay facts before this court on
the status of Paradise Park Motel (Pvt) Ltd other than averments of
the first
respondent’s sworn affidavit to the effect that that she
would become co-director with the testamentary executor in this
company
which was part of her late husband’s estate. The letter
from Gill, Godlonton & Gerrans seems to suggest that post
payments
on the purchase price were paid by the first respondent.
There would be need to lead evidence on the true circumstances
surrounding
the shares in question. It may very well be that the
shares belong to the estate notwithstanding that in terms of section
104(1)
of the Companies Act [
Cap 24:03]
the holder of a certificate duly signed and with the seal of the
company is presumed to be the owner of the shares on a
prima
facie
basis. This however is an area where
further evidence will be needed. If so advised, it seems to me that
this is an issue to
be pursued by the second respondent with the
Motel and the first respondent.







When the applicants brought the application it must have
been in their contemplation from the contents of the letter from
Gill,
Godlonton & Gerrans that a dispute of fact would arise on
the question of shares. They did not cite the company. These
factors
are fatal to the present application.







I would thus dismiss the request to hold that the 4 000
shares belong to the estate in the absence of further evidence.”







It appears to me that the dispute as to the ownership of
the shares is bona fide and not merely illusory. In such a case the
onus is on the
appellants to satisfy the court that the matter could be resolved on
the affidavits without the risk of injustice to
the other party. See
Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech
1987 (2) ZLR 338 (5) at 339C. This they
failed to do. I cannot fault the learned Judge for finding himself
unable to resolve the
dispute on the papers without hearing evidence.
In choosing to proceed by way of court application the appellants,
aware of the
dispute of fact, took the risk of failing to discharge
the
onus on them to
convince the court that the matter could be determined without
calling evidence.







In the premises, I would uphold the decision of the
learned Judge on this issue as well.











Accordingly, while it is my judgment that the appellants
had
locus standi to
approach the court, I am satisfied that their appeal on the merits
must fail.







The appeal is, therefore, dismissed with costs.














SANDURA JA: I agree















GARWE JA: I agree























Hungwe & Partners,
appellants’ legal practitioners



Chihambakwe, Mutizwa & Partners,
respondents’ legal practitioners