Richard Moyo-Majwabu N.O. (in his capacity as the executor of the estate of the late Siphiwe Dube) v The Provincial Mining Director Matabeleland South N.O. and Oliver Musomera N.O. (in his capacity as the executor of the estate of late Clement Dube) and Master of the High Court and Jabulani Ngwenya and Moses Ngwenya

### Preamble
1
HB 58/25
HCBC2408/23
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RICHARD MOYO-MAJWABU N. O. (IN HIS CAPACITY

AS THE EXECUTOR OF THE ESTATE OF TIIE LATE

SIPHIWE DUBE DRB /966/20)

Versus

THE PROVINCIAL MINING DIRECTOR

MATABELELAND SOUTH N.O

And

OLIVER MUSOMERA N.O. (In HIS CAPACITY AS THE

EXECUTOR OF THE ESTATE OF LATE CLEMENT DUBE B 45/0

And

MASTER OF THE HIGH COURT

And

JABULANI NGWENYA

And

MOSES NGWENYA

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO, 9 MAY 2025

Advocate P Dube for the applicant

B. Maruva with Mr J Zuze for the second respondent

Judgment

INTRODUCTION

NDUNA J:	This is a chamber application for leave to file an additional affidavit. After hearing the parties, I issued an order in the following terms:

The applicant shall file the leave for additional affidavits within 5 days for both applications there after give the respondents 10 days to file their responses

For application for review HC1555/23; CAPP 329/23 Annexure A, B1 and B2 and F1only shall be included

For Urgent Chamber application HC1416/23; UCA100/23 annexure B1, B2, F, F1 and G shall be included

FACTUAL BACKGROUND

The first respondent was appointed as the executor of the estate of Siphiwe Dube, who passed away in 2020. The second respondent was appointed as the executor of the estate of Clement Dube by one of his sons, following Siphiwe Dube’s death, amid a dispute regarding the partitioning of the estate. After assuming the executorship of Clement Dube’s estate, the second respondent applied to the Master of the High Court in Harare—who is the 3rd respondent in this matter—for approval to sell certain properties belonging to both Clement and Siphiwe Dube’s estates. The second respondent also applied to have some mine claims transferred from Siphiwe Dube’s estate to Clement Dube’s estate, asserting that the previous transfer had been irregular. This was done through an application to the Provincial Mining Director of Matabeleland South, the 1st respondent. In response, the applicant filed an application to review the decisions made by the 1st respondent concerning the disputed mining claims. The applicant also lodged an urgent application seeking to interdict the second respondent from selling the immovable property.

The applicant raised objections to the proceedings conducted by the 1st respondent, asserting that they were initiated and concluded without his involvement, despite his role as the executor of the estate of the late Siphiwe Dube. During the proceedings before the Provincial Mining Director, the second respondent made no mention of the joint will. The applicant avers that, in making decisions concerning the disputed claims, the Provincial Mining Director was unaware of the joint will signed by Clement and Siphiwe Dube. The applicant further maintains that he, too, was unaware of the existence of this joint will at the time. The applicant states that he only became aware of the existence of the joint will and the approval of the sale of immovable property on the 18th October 2023. In the joint will, the two deceased testators provided that whoever passed on first the surviving spouse would inherit the other’s estate, and if they were to pass on within 30 days of each other, their children would inherit the estate equally.

It is common cause that the dispute between the parties arises from the applicant’s belief that the 2nd respondent lacks locus standi to represent the estate of Clement Dube. Secondly, the applicant alleges that the 2nd respondent, together with Vusumuzi Dube, is attempting to deplete the estate by selling property and transferring assets without proper authorization. He contends that this is why the application for executorship of the estate was moved to the Master in Harare, despite the fact that the property in question is situated in Bulawayo. Thirdly, the applicant asserts that the transfer of the mine claims by the 1st respondent was unlawful.

In response, the 2nd respondent maintains that he was duly appointed and is acting within his capacity as executor. He further avers that the applicant is not being entirely truthful in claiming ignorance of the joint will. The 2nd respondent also asserts that the 3rd respondent’s approval of the sale of immovable property, and the 1st respondent’s decision to revert the mine claims from Siphiwe Dube’s estate to that of Clement Dube, were both legally and procedurally sound.

The applicant now seeks to be granted leave to file additional affidavits with evidence of the joint will and other annexures.

SUBMISSIONS BY THE PARTIES

The applicant submits that the 1st respondent was unaware of the joint will when he decided to revert the mine claims. The applicant also states that he, too, was unaware of the joint will at the time of filing the review and urgent applications, and it is in the interest of justice to allow this new evidence, as it materially affects the legal basis of both applications and challenges the jurisdiction of the 1st respondent.
The respondent in turn submitted that the application was not proper as the applicant was not being truthful that he was not aware of the Joint will; as executor he should have been. Secondly, the additional affidavit greatly impacts on the matter as it can materially change the impending litigation. It has potential to raise a new cause of action which in law cannot be brought through any other affidavit except the founding affidavit.

ISSUE FOR DETERMINATION

I find that the only issue for determination in this matter is whether granting of the application for filing an additional affidavit is warranted and will not prejudice the respondents.

ANALYSIS

Rule 59(12) of the High Court Rules, 2021, states that:

“After an answering affidavit has been filed, no further affidavits may be filed    without the leave of the court or a judge.”

Rule 59 (12) clearly states that no further affidavits can be filed after an answering affidavit without the leave of the court. Thus, it is in the discretion of the court to grant or disallow the filing of additional affidavits. Before granting this application, there are a number of factors that must be considered as outlined in the case of BOUCCAERT v Duckworth & 5 Others HH 873-22, wherein Chilimbe J had the following to say: -

“It is settled in law that where parties elect to litigate via motion proceedings, the courts will;

insist on such parties adhering to the sequence prescribed in the rules,

Permit a departure from that order only in exceptional circumstances and reiterate

That the granting of any leave to file additional affidavits is discretionary; further, the courts will require of a party so seeking leave

to prove that it is not motivated by mala fides in seeking to introduce the additional evidence and

to tender valid reasons for not having availed the evidence earlier. Finally, the court must be satisfied that

adduction of additional affidavits will not prejudice the other party and that

the new evidence sought to be introduced will not materially alter the causa or controversy between the parties”

Peebles v Dairibord (Private) Limited Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H);

“The law on what constitutes a cause of action is settled. A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands. See Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H) at 54E-F and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637.”

The 2nd respondent in his heads of argument argues that the additional affidavit creates a new cause of action therefore it must not be allowed. I however, am of a different view when applying for the removal of the mine claims from Siphiwe Dube to Clement Dube; the 2nd respondent neglected to inform the 1st respondent of the joint will. This should have been done due to the potential legal implications it could have had on his decision. It is safe to assume that if the 1st respondent had been aware of the joint will, there is a possibility that he would not have come to the conclusion he did. Thus, the addition of the joint will as evidence will not alter the cause of action as the aim of the review is to challenge the decision made as procedurally wrong, and this could potentially prove this.

On the urgent chamber application, the purpose is to get an interim order to prevent the selling of assets in the joint estate of Clement Dube and Siphiwe Dube pending finalization of the matters before the court concerning the estate. The joint will in these matters could play a vital role in determining whether the 2nd respondent has locus standi to be the executor of Clement Dube and whether the granting of the sale of the properties by the Master was legally correct. Again, I state that it does not create a new cause of action

Furthermore, even if the additional affidavits can materially affect the matter the, the law in Revesai v Windmill (Pvt) Ltd HH 163-16 states that:

“A court dealing with an application to file an additional affidavit may not accede to a request to file an additional affidavit where, it raises wholly fresh issues, unless the new facts came to the litigant’s knowledge after filing the affidavits.”

I state that the law in Revesai (supra) grants the court discretion to allow the filing of additional affidavits, even where such affidavits raise wholly new issues, provided that the facts came to the litigant’s knowledge after the initial affidavits were filed. This aligns with the applicant’s argument—that the new facts only came to light after the review application and the urgent chamber application had already been lodged. I find this position justified, as the joint will could have worked in the applicant’s favour. Accordingly, there was no reason for him to withhold it, given that it supported Siphiwe Dube’s entitlement as the sole beneficiary of her and her late husband’s estate.

In considering whether special circumstances exist in an application, the court is reposed with discretion. In James Brown & Hamer (Pty) Ltd v And Ors v Simmons 1963 (4) SA 656 (A) at 660 D-F, the court said the following on the discretion that a court dealing with such an application has as follows,

“It is in the interest of the administration of justice that the well- known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must not always be rigidly applied; some flexibility, controlled by the presiding judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted.”

In the Revesai case (supra), it was further held as follows:

“The explanation proffered by the applicant must be proper and satisfactory and the affidavit should only be disallowed where the respondent is likely to suffer prejudice and in circumstances where the prejudice likely to be suffered by the other side cannot be cured by a fitting order of costs. The applicant must provide an explanation that negatives mala fides. The court will look at the conduct of the applicant in relation to the application and the cause of the information not being provided in earlier affidavits. The applicant is required to show the court that it is in the interests of justice that the affidavit be allowed”.

The applicant contends that he was unaware of the information contained in the additional evidence, as the application by the 2nd respondent had been transferred from Bulawayo to the Master in Harare, notwithstanding that the properties in question are situated in and around Bulawayo. The applicant only became aware of this development upon obtaining the record from Harare.

The 2nd respondent disputes the applicant’s explanation by referring to letters—annexures B and C—in his opposing affidavit. However, these letters do not make any reference to the joint will; they merely notify the applicant of planned meetings to resolve issues regarding the estate.

The 2nd respondent further contends that the provisional order obtained by the applicant on 27 October 2023 contains the same evidence that the applicant now seeks to include in the additional affidavit, thereby suggesting that the applicant was already aware of the details before the claimed date. However, the 1st respondent does not prove which specific evidence was included in that application or what was relied upon. From the applicant’s founding affidavit, it is evident that the order was obtained on 27 October 2023, which is after 18 October 2023.

In the applicant’s conduct, I have not observed any mala fide intentions. I am satisfied that the explanation given was adequate and that there have been no signs of bad faith. It is clear that the legal requirements for granting leave to file an additional affidavit have been met.

Moreover, in the interests of justice, the filing of the additional affidavit is necessary, given its significance in resolving the dispute. As to whether the respondents would suffer prejudice if the affidavit is filed, I find that with sufficient time granted to them to respond, any potential prejudice can be adequately mitigated and the scales of justice balanced.

The 2nd respondent, in paragraph 16 of the opposing affidavit, disputes the necessity of including the sale of the houses in the application for review. I agree with the 2nd respondent that, although it is understandable that the application was structured in this manner to save time, including all the annexures from the additional affidavit would only lead to confusion. Accordingly, only the relevant documents for each application shall be permitted in the additional affidavit.

DISPOSITION

In these circumstances, it is ordered as follows:

1.	The application for leave to file an additional affidavit is granted as follows:

Annexures A, B1 and B2 and F1 only be allowed for the Review Application HC1555/23 and annexures B1, B2, F, F1 and G only be allowed for the Urgent Chamber Application HC1416/23.

2.	There is no order as to costs.

James, Moyo-Majwabu & Nyoni applicant’s legal practitioners

Zuze Law Chambers 2nd respondent’s legal practitioners