Nomayi Mahlangu v Sibonokuhle Mpofu NO and Edwin Bululu Mahlangu NO and The Master of the High Court

### Preamble
1
HB 124/21
HC 1595/20
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NOMAYI MAHLANGU

Versus

SIBONOKUHLE MPOFU NO

(In her official capacity as the Co- executor

Of the Estate Late Solomon Mahlangu DRB 1716/18)

And

EDWIN BULULU MAHLANGU NO

(In his capacity as the Co- executor of the

Estate Late Solomon Mahlangu DRB 1716/18)

And

THE MASTER OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 22 JUNE AND 1 JULY 2021

Opposed Application

N. Sibanda, for the applicant

G. Nyoni, for the 2nd respondent

KABASA J:	On 24th July 2020 an application was argued before me where the 1st respondent was the applicant in an application seeking condonation for late filing of an application for review.  The decision that was sought to be reviewed upon the granting of the application was the 3rd respondent’s.  I dismissed that application in a judgment which was handed down on 20 August 2020.

This application, which I am now seized with, is another application for condonation.  The difference now is that the condonation being sought is for late filing of an appeal.  The intended appeal is against the same decision which was rendered by the 3rd respondent on 5th April 2019.  Nomayi Mahlangu who was non-suited in the earlier application wherein she had been cited as the second applicant is now the only applicant in this application.

Nomayi Mahlangu is a sister to Sibonokuhle Mpofu and the two are daughters of the late Solomon Mahlangu.  Solomon Mahlangu died testate but issues arose regarding the authenticity of his Will.

The 3rd respondent held an inquiry and heard evidence from nine witnesses.  She then held that although the Will did not comply with the formalities as prescribed in the Wills Act, Chapter 6:06, the testator intended it to be his last Will and Testament but only in so far as it bequeathed his property to his two sons.  The part which now supposedly included the daughters was held to be fraudulent and consequently rejected by the 3rd respondent.  The 3rd respondent’s determination was subsequently acted upon by the 2nd respondent who was appointed as a co-executor with the first respondent.

The 2nd respondent proceeded to advertise for creditors and debtors and followed all the required processes up to the drawing up of the first and final distribution account which was also advertised in the press and the government gazette published on 12th July 2019 ,as lying for inspection.

On 5th September 2019 the 1st respondent filed the application for condonation I have already alluded to, which I dismissed.  In that judgment I made the point that the purported review was to all intents and purposes raising grounds of appeal as it was the correctness of the 3rd respondent’s 5th April 2019 decision that was sought to be impugned.

The present application by Nomayi appears to have been informed by this decision which was handed down on the 20th August 2020.  Nomayi’s application for condonation was filed on 17th September 2020.

In terms of section 8 (6) of the Wills Act, Chapter 6:06:-

“Any person who is aggrieved by a decision of the Master may appeal to an appropriate court within thirty days of being notified of the decision of the Master.”

The applicant ought to have appealed within 30 days of being notified of the Master’s decision.

Condonation is essentially seeking the court’s indulgence so as to pardon a litigant’s failure to comply with the rules of the court. In casu the time within which to lodge an appeal is specifically provided for in the Wills Act

In Kodzwa v Secretary for Health and Another 1999 (1) ZLR 313, the court stated that the granting of condonation is a discretion reposed in the court, which discretion is to be exercised judicially, upon a consideration of all the facts, as a matter of fairness to both sides in the interests of justice.

The broad principles the court will follow were enunciated in Kombayi v Berkhout 1988 (1) ZLR 53 (SC) as: -

“...... the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success.  If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

In her founding affidavit the applicant explained why the appeal was not filed on time.  Counsel for the 2nd respondent however has argued that there is no application before the court because the applicant’s affidavit is fatally defective.  It is not dated.

Section 3 of the Justices of the Peace and Commissioner of Oaths Act, Chapter 7:09 provides that the Minister may appoint Justices of the Peace who shall also be ex officio Commissioners of Oaths for the area for which they have been so appointed.  In casu the Commissioner of Oaths is a legal practitioner who duly affixed his signature and stamp and the affidavit is signed by the deponent who took the oath before the Commissioner of Oaths. The Minister appointed Legal Practitioners as ex officio commissioners of oaths for all districts in Zimbabwe under Part 1 of the First Schedule of the Ex Officio Commissioners of Oaths: Designation Notice,1983. The affidavit was therefore deposed to before a commissioner of oaths. The only thing that is missing is the date when the commissioning was done.

Whilst the dating of the affidavit is important, I am not persuaded to accept that the absence of a date makes it fatally defective.

In Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd SC 1-2015 the deponent took an oath before a legal practitioner who appended his signature above the designation “Commissioner of Oaths.” However, the stamp used was one that is ordinarily used for certification of documents as copies of the originals.  PATEL JA held that the use of such an “inappropriate” stamp did not invalidate the affidavit.

The learned JA had this to say: -

“It is not disputed Raymond Moyo is a legal practitioner and a notary public and as such, a recognised Commissioner of Oaths.  The respondent has therefore verified its cause of action in an affidavit, deposed by its functionary duly authorised thereto, before a clearly identified Commissioner of Oaths.  That, in my view suffices for the intended purpose of adducing evidence under oath and tenders the validity of the respondent’s founding affidavit manifestly impervious to challenge.”

Whilst the issue in the Firstel Cellular case (supra) related to the stamp, the reasoning therein applies with equal force in casu.

The deponent appeared before a clearly identified Commissioner of Oaths.  It is the appearing and taking of the oath before an authorised Commissioner of Oaths that makes the affidavit valid and not so much the date when such was done. As stated earlier the date is important, particularly where issues may arise as to whether the deponent was present on the date the oath is said to have been taken. In casu the 2nd respondent persisted with his contention that the applicant was not in Zimbabwe due to her irregular stay in South Africa which makes it nigh impossible for her to visit Zimbabwe as and when she desires to. She therefore could not have been the one who deposed to the affidavit. However, without definitive proof that the signature on the affidavit is not hers, it remains a suspicion that she probably was not the one who deposed to the affidavit. The absence of the date in itself does not, in my considered view, invalidate the affidavit.

I am therefore in agreement with Mr Sibanda that the lack of date does not make the affidavit fatally defective.

In her founding affidavit the applicant appears to have regurgitated what the 1st respondent said in her founding affidavit in support of the application I dismissed.

It cannot therefore be correct that the applicant is a co-executor of the estate and that she only became aware of the 3rd respondent’s determination when the 2nd respondent sought her signature on the first and final distribution account.

All that is stated regarding the reason for the delay applies to the 1st respondent and cannot possibly be exactly the same with the applicant.  The applicant is an illegal immigrant staying in South Africa and was not involved in the winding up of the estate as a co-executor.  All she is, is a beneficiary.

Where is the applicant’s voice then in explaining the delay?  Mr Sibanda conceded that there was a “cut and paste” job from the 1st respondent’s earlier application which was imported wholesale into the applicant’s founding affidavit.

As stated earlier, such an admission casts grave doubts as to whether it is indeed the applicant who deposed to this affidavit.  The situation is made worse by the fact that the applicant in her attempt to prove that she visited Zimbabwe, offered to appear in court but on the court day was said to be unavailable due to an expired Covid 19 Certificate.  Her appearance would not have proved that she was the one who deposed to the affidavit but her assertions tend to show her lack of candidness.  I say so because if she is illegally in South Africa, it means she cannot legally present herself at the respective point of entry and exit.  How then can she talk of inability to travel due to an expired Covid 19 Certificate?  Where and to whom did she intend to present it when she can only use some illegal points of entry and exit to make her way in and out of Zimbabwe?

The applicant was not taking the court into her confidence and that being the case how can it be said she has satisfactorily explained the reason for the delay and that such explanation is reasonable?

In any event, a litigant ought to show interest in their matter and not sit back without seeking to find out the outcome of their case.  The reason given by the 1st respondent in the earlier application for not acting timeously, is the same given by the applicant.  She was legally represented and a legal practitioner should know better than to sit back and not make efforts to find out the outcome of a matter they have an interest in. The 2nd respondent was able to get the 3rd respondent’s determination and proceeded to perform his duties upon being appointed a co-executor. He was not in any better position than the applicant who could also have been aware of the decision had she chosen to.  Like I said in the earlier application, if it is suggested that the legal practitioner was negligent, the applicant cannot escape the consequences thereof.  (Bishi v Secretary for Education 1989 (2) 240 at 244 A-G).

“Condonation should not be granted for the mere asking.  The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence” (Kondonani v Muvami HH 81-07).

The earlier application for condonation for late filing of an application for review was dismissed and the applicant ought to have been aware of the decision by 20th August 2020.  She did nothing and only filed this application on 17th September 2020, almost a month later. This does not show diligence on her part. She does not even explain the reason for the non-timeous action between the 20th August and 17th September when this application was eventually filed.

The situation is compounded by the applicant’s lack of honesty.  I say so because, following the dismissal of the HC 2134/19 application, 2nd respondent’s legal practitioner wrote to the applicant’s legal practitioner calling on the 1st respondent to sign the first and final distribution account.  That letter was written on 8th September 2020 and in a letter dated 10th September 2020 the applicant’s legal practitioner responded: -

“Mrs Nomayi Mahlangu has filed an application for condonation for late filing of an

appeal.  To that end, Mrs Mpofu is of the view that let that application be heard first then everything will resolve itself.”

Mrs Nomayi had not filed that application as it was only filed on the 17th September 2020.  In her founding affidavit (if indeed it is hers) she does not explain why she sat back from 20th August 2020 to the date she then decided to file this application for condonation.

“Those who leave their affairs to chance have themselves to blame if the law is unable to assist them.  The law will help the vigilant but not the sluggard.” (Ndebele v Ncube 1992 (1) ZRL 288).

Litigants ought not to play games.  By filing an application for condonation for late filing of an application for review and after its dismissal, bring another application for condonation for late filing of an appeal, the applicant is playing games with the court.

“In applications of this sort, the prospects of success are in general an important, although not decisive consideration.” (Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124.)

It follows therefore that an applicant cannot ask the court to ignore his or her tardiness just because their matter enjoys good prospects of success should condonation be granted and they are allowed to file their appeal.

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive.  Thus, in the case of flagrant breach of the rules, particularly where there is no acceptable explanation, for it, the indulgence of condonation may be refused whatever the merits of the appeal.”  (Kodzwa v Secretary for Health and Another (supra)).

In casu the 3rd respondent heard from 9 witnesses and almost all of them were agreed that the late Solomon Mahlangu was specific in his Will.  Edwin was given the chieftainship because he had been given a share of his father’s wealth when he built his own homestead.  Martin got the bulk of the estate as the second of the two sons expressly mentioned in the Will.  That Will then disappeared, only to surface as a copy from the 1st respondent who hitherto appeared reluctant to produce it.  Upon re-surfacing the Will had provisions at variance with the one read after the deceased’s death.  This was the evidence the 3rd respondent had before her and she had the benefit of observing and listening to these witnesses.  The 3rd respondent lived through the drama of the case and so was in a unique position to evaluate the evidence in its proper perspective. She was after all discharging her duties as a quasi-judicial official (S v Joseph Mbanda SC 184-90).

These witnesses included the deceased’s children, a neighbour and a brother.  There is no suggestion that the applicant or the 1st respondent were denied an opportunity to call other witnesses who would have given a different account of what transpired at the reading of the Will.  Even in a criminal trial, not all possible witnesses are called to testify and one cannot seek to impugn the court’s decision which is based on the evidence of those who testified, because some other witnesses who did not testify, could have said something different.

The interests of public policy demand that there be finality to litigation (Masulani v Masulani HH 68-03).

The estate of the late Solomon Mahlangu has all but been concluded but for the shenanigans of the applicant and 1st respondent who are bent on frustrating the conclusion of the matter.

The applicant has not made a case for the relief she seeks.  I am not persuaded to exercise my discretion in her favour.

In HC 2134/19 I held that a case had not been made for punitive costs.  I hold a different view as far as this application is concerned.

The court must show its displeasure at litigants who appear to take some weird satisfaction at unnecessarily prolonging litigation for the sake of it.

Costs are in the discretion of the court and in my exercise of that discretion, I am of the view that there is need for censure.  This being so because of the reasons alluded to earlier on in this judgment.  The applicant was not being honest in her averments and this application appears to have been filed as a belated response to my decision in HC 2134/19.

In the result, I make the following order: -

1.	The application for condonation be and is hereby dismissed.

2.	The applicant shall pay costs on a legal practitioner-client scale.

Tanaka Law Chambers, applicant’s legal practitioners

Moyo and Nyoni, 2ndrespondent’s legal practitioners