Hleniwe Dube (Nee Sidubi) v Manala Loveleness Motsi N.O. and Assistant Master of the High Court Bulawayo N.O. and Estate Late Mehluli Dube

### Preamble
HB 180.19
HC 960/19
HLENGIWE DUBE (NEE SIDUBI)
---------




HLENGIWE DUBE (NEE SIDUBI)

Versus

MANALA LOVENESS MOTSI N.O

AND

ASSISTANT MASTER OF THE HIGH COURT BULAWAYO N.O

AND

ESTATE LATE MEHLULI DUBE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 21 OCTOBER & 5 DECEMBER 2019

Opposed Matter

T Khumalo, for the Applicant

G Sengweni, for the Respondents

MOYO J:	This is an opposed application wherein the Applicant seeks the removal of 1st respondent as an executrix dative in the estate of the late Mehluli Dube.  The Applicant is a surviving spouse and a beneficiary in the deceased estate being the subject matter of this application.  At the hearing of the application, I gave an ex tempore judgment granting the order as sought by the Applicant.  The 1st Respondent has since requested for the written reasons for my judgment and I hereby proceed to give my reasoning.

Before I even proceed to analyse the case it is pertinent at this juncture that I mention that the 2nd Respondent being the Assistant Master of the High Court has written a report in support of the application being made by the Applicant.

The gist or very basis of this application is espoused in paragraphs 8-15 wherein the applicant details 1st Respondent’s failures and the general lethargy with which 1st Respondent is attending to the affairs of the estate.  The sum total of the Applicant’s case is that she is dissatisfied with 1st Respondent’s inaction and failure to wind up the estate causing the beneficiaries financial anxiety and need.  The 2nd Respondent, being the Master has also stated in her report that the executrix has failed in her duties and that her continued administration of the estate would be prejudicial to the interests of the beneficiaries.

1st Respondent in her opposition states that she has not failed to administer the estate and in paragraph 6.1 says the relatives were not forthcoming with the disclosure of all assets that belonged to the estate and that she recently discovered shop 5 and 8 which were not listed as estate property.  She then further says she could not just include those properties as she had to investigate if they indeed belonged to the estate.  She then discovered that deceased owned another shop in Magwegwe and she sought directions from lawyers with regard to shop 5 and 8 Southworld Shopping Centre.  She wrote to lawyers twice with no response until February 2019 when she was told about a dispute over the property.  The problem with these assertions are that firstly, if the deceased owned some properties, its either they are registered in the deceased’s names warranting that no investigations be done with regard to same, as surely documents will speak to that fact.  It then baffles one’s mind as to what the 1st Respondent says were problems in establishing “ownership” of the “discovered” properties.  As surely, properties owned by an estate are clearly owned.  Then, if properties are owned by an estate but they are in the names of third parties, then surely 1st Respondent must know what to do as an executrix.

Fine she discovered the assets that are in dispute and then what?  As an executrix she is duty bound to initiate claims in favour of the estate.  She does not tell us in her affidavit that she has since done so.  If she discovered that the estate she is managing has claims against third parties she certainly should have kick-started the process of recovering such properties via the courts, which she does not tell us, she has done in her affidavit.  That in its own, per her own affidavit is an admission of the lethargy that is being alleged by the Applicant and 2nd Respondent.

In paragraph 6.4 of the opposing affidavit she also states that there was also an ownership wrangle over a Toyota D4D registration number.ADV 0434 which was confiscated by one of the relatives after the funeral.  She then says the matter was reported at Donnington CR 72/03/18.  She alleges that the matter is still under investigation.  Certainly if the motor vehicle is owned by the estate, it must have registration documents to that effect, in which case herself as the executrix should mount an action for the recovery of same through the courts so that she can accomplish her mission of winding up the estate within the expected time frames.  Even if say, for argument’s sake the motor vehicle is in the name of a third party, she can still lay a claim in favour of the estate and against the third party through the courts so that the matter is determined and the estate is finalized.  Again she sits and waits for police investigations in an estate claim which in itself can be settled by the courts.  The court takes judicial notice that the CR number is 03/18 meaning that is a March 2018 CR  number which matter she has just forgotten about.  In fact what is under investigation?

Through these paragraphs the executrix herself exhibits conduct that smacks of incompetence and a failure to dutifully attend to the needs of the estate with the exigency demanded by the situation.  She makes discovery of assets, she discovers disputes relating to assets of the estate, she sits back and does nothing.  That in essence means this estate will never be wound up.  She is going to wait for the investigation on the D4D Toyota Hilux forever as it seems she has already waited for more than a year with no action.  She has also not told us about any pending litigation on shop 5 and 8 to show her ernest keenness to wind up the estate.  I therefore am persuaded by 1st Respondent’s own responses that she is deficient in her execution of the duties incumbent upon her in terms of the law.  The applicant’s concerns with her general lethargy are therefore justified in my view.  As I have already said her failure to take critical and obvious steps  to claim the estate properties that she herself alleges must be claimed, shows that she is incompetent in itself.

This court does not handle the administration of estates.  Such is the purview of the Master.  The Master is the one privy to the goings on in the estate file.  The Master knows the timelines and all the instructions, directions and deadlines given by the law.  The Master knows the status of the file in question.  The Master is unhappy with the manner in which the 1st Respondent is performing her duties.  The essence of Rule 248 (1) is on the basis that the Master is well placed to give an informative and first hand report to the court to enable the court to come up with a fair assessment of the situation before it.  In the absence of the establishment by 1st Respondent of any malicious intent on the Master, this court should as a matter of principle accept the contents of the Master’s report in its final determination of the dispute between parties involving a deceased estate.  I have not been shown any reason why the Master would detail an adverse report against the 1st Respondent for no apparent reason.  The Master supervises and works with 1st Respondent, and her support of the application on the facts contained in the report cannot be ignored by this court.  It is for these reasons that I accepted the Master’s views in support of the application.

Basically, I granted the application on the basis that, indeed a case has been made factually, in the founding affidavit and secondly 1st Respondent herself through her own averments in her opposing papers has shown she is incompetent.  The third reason of course is the weight given by the Master’s report as I have already stated herein.

I am aware of the legal principles relating to the removal of an executrix as cited by both parties in terms of the common law.  It is trite that an executrix who is grossly incompetent or who acts in a manner that is prejudicial to the estate and its beneficiaries can be removed.  In fact the list of grounds for removal is endless and each case will depend on its own facts, with the court having an unfettered power to reason each case as it deems fit as to whether sufficient grounds exist for an executrix’s removal or not.   I hold the view that this is one such case as I have already stated herein, that from her own averments, the executrix is incompetent in that she is not taking the necessary steps to deal with claims in favour of the estate through the courts so that same can be finalized and she concludes the estate.  From her own averments she will just sit and do like someone waiting for the rain.  That on its own is incompetence.  As for costs at a higher scale, I gave them as sought for the simple reason that this application should not have been opposed given the glaring failure to act in an obvious situation and in light of the Master’s report which details how 1st Respondent’s conduct is prejudicial to the estate.  I held the view that 1st Respondent’s persistence in this regard despite her own admissions unnecessarily put the other party out of pocket.

It is for these reasons that I granted the order as sought.

Ncube and Partners, applicant’s legal practitioners

Sengweni Legal Practice, 1st Respondent’s legal practitioners