Cecil Madondo (In his Capacity as Executor Dative in the Estate of the late Existo Francis Hapaguti DR 401/09) v Stella Hapaguti and The Master of the High Court

### Preamble
1
HH 188-2013
HC 6519/12
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CECIL MADONDO

(In his Capacity as Executor Dative in the Estate

of the late EXISTO FRANCIS HAPAGUTI DR 401/09)

versus

STELLA HAPAGUTI

and

THE MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 4 June and 13 June 2013

Family Law Court

Opposed Application

E T Moyo, for the applicant

K Gama , for the 1st respondent

No appearance for the 2nd respondent

MAWADZE J:  This is an opposed interlocutory application for the upliftment of bar and condonation.

After reading the papers filed of record I was convinced that this interlocutory application could have been resolved between the parties through simple engagement without unnecessary detaining the court with such an application and the parties incurring unnecessary and probably avoidable costs. The first respondent however vigorously opposed the application.

The applicant is Dr Cecil Madondo who is the first respondent in the main matter being an application filed by the first respondent against Dr Cecil Madondo (“Dr Madondo”) in his official capacity as the Executor Dative of Estate late Existo Francis Hapaguti.

The first respondent Stella Hapaguti is the wife of the late Existo Francis Hapaguti whose estate is being wound up, administered and distributed. She ordinarily resides in the United Kingdom. She is the applicant in the main matter which ironically bears the same reference case number HC 6519/12 with the interlocutory application. In the main application the first respondent Stella Hapaguti seeks a declaratur, which application the applicant in casu intends to oppose.

The second respondent, the Master of the High Court of Zimbabwe is cited as such in his official capacity both in the main matter and in this interlocutory application.

In order to understand the basis of this interlocutory application one has to briefly relate to the facts in the main matter. Some of the facts in the main matter are in dispute hence I will simply refer to those relevant facts I believe are mostly common cause.

The late Existo Francis Hapaguti was in a polygamous relationship involving the first respondent and two other women. It is common cause that the late Existo Francis Hapaguti entered into unregistered customary law unions firstly in 1993 with one Runyararo Violet Hapaguti (nee Kadzingi), then with the first respondent Stella Hapaguti in 1995 and lastly with Chairty Hapaguti (nee Paradza) in 1998. The late Existo Francis Hapaguti had eleven children, three of whom were with the first respondent being the two twin brothers Tatenda Sean Hapaguti and Tadiwa Shane Stone Hapaguti born on 15 January 1996 and Mufaro Rhys Hapaguti born on 3 March 1999. It would appear that the late Existo Francis Hapaguti and the first respondent Stella Hapaguti emigrated to the UK and the other two wives remained in Zimbabwe. While in UK and on 17 May 2003 the first respondent and the late Existo Francis Hapaguti registered their marriage and purported to enter into a monogamous marriage. However in terms of the proviso in s 68 (4) of the Administration of Estates Act [Cap 6:07] the first respondent is deemed to have been married in terms of customary law. In terms of the ranking of the wives she is the second wife and not the first wife.

The late Existo Francis Hapaguti passed on 10 April 2009 in the United Kingdom and was buried in Zimbabwe. He owned assets both in Zimbabwe and the United Kingdom. His estate was registered under DR 401/09 and is being administered in terms of Part III A – a person to whom customary law applies. The applicant was then appointed the Executor Dative of the Estate and on 7 December 2009 produced the First Interim Administration and Distribution Account which is the Inheritance Plan which account was duly advertised without any objections raised and was confirmed by the third respondent the Master of the High Court on 12 February 2010 in terms of ss 68 D and 68 E of the Administration of Estates Act [Cap 6:01] (“the Act”). Meanwhile through a General Power of Attorney dated 30 April 2009 the first respondent had appointed her cousin one Godfrey Chivazve to represent her interests in the administration of the said Estate. The said agent was initially assisted by Mr Aston Musunga, a legal practitioner whose services were however terminated leaving Godfrey Chivazve as the sole agent.

In brief the First Interim Administration and Distribution Account or Inheritance Plan Annexture C (hereinafter Annexure C) details the deceased’s assets and how they are distributed to the beneficiaries and also why some assets are outstanding. In respect of the first respondent Stella Hapaguti Annexture C states that it was agreed that she would inherit the estate’s assets in the UK being the 50% share in an immovable property No 17 Oakhill Letehwork and other assets. It is also stated that the Executor is to appoint an agent in the UK to administer the UK assets including cars and that if the value of such assets exceed what is termed the average share of inheritance, then the excess is shared among all the 14 beneficiaries including the first respondent. It is also clear from Annexture C that a number of issues are still outstanding for example the submissions of birth certificates by beneficiaries, the disposal of some immovable assets to meet administration expenses and deceased parents’ maintenance and the outstanding instructions on five immovable properties and the transfer of the funds from the UK accounts. All these outstanding issues are still to be resolved by the Executor as per Annexture C. In terms of Annexture C the first respondent’s entitlement on share of the estate is said to be governed by s 68 F (2)(b)(1) of the Act which provides as follows:

“(b)	Where the deceased person was a man and is survived by two or more wives and had one or more children –

one third of the net estate should be divided between the surviving wives in the proportions two shares to the first or senior wife and one share to the other wife or each of the wives as the case maybe;”

As already said the first respondent is or was deemed to be the second wife. Annexture C also indicates that the other wives were considered and that provisions of s 68 F(2)(c) relevant to immovable properties and their respective household goods were taken into account.

On 15 June 2011 the first respondent then filed a court application in the main matter seeking the following relief in form of a declaratur:

“It is ordered that:

The applicant is entitled to two quarters (2/4) of a third of the net estate of the late Existo Francis Hapaguti (DR 401/09) comprising of the assets in Annexture C to founding affidavit and a Toyota Aygo in the United Kingdom.

That the first respondent shall pay the costs of suit.”

It remains unclear from the first respondent’s founding affidavit in the main matter as to why she had sought this order. What I can discern is that the first respondent seems to raise issue of her alleged monogamous marriage to the deceased (para 4) but without elaborating how this is relevant to the order sought. Secondly, the first respondent seems not to deal in any detail with the role of her agent in the process of compiling Annexture C but seems to allege that the agent did not act in her best interests and or did not even report to her. This is vehemently denied by the agent. Lastly the first respondent refers to the action she took after Annexture C has been confirmed by the Master on 12 February 2010 which action she seems to have been taken on 12 January 2012 and thereafter engaged the Master of the High Court (“the Master”). It is also apparent from the record relating to the main matter that on 25 April 2012 the Master addressed the first respondent’s queries or complaints in the following manner:

That the first respondent should take cognisant of the fact that she was in a polygamous union;

That the first respondent appointed an agent Mr Chivazve who was at all material times consulted by the Executor and that no objections were raised in relation to Annexure C;

that the first respondent’s agent agreed to the inheritance plan Annexture C in which the first respondent was awarded property in the United Kingdom.

That the first respondent’s three children were awarded immovable property in Zimbabwe from which the first respondent is currently collecting rentals which conduct is deemed to be acceptance of Annexture C by the first respondent as she also signed for an acquittance form;

That the Estate’s Account Annexture C was advertised as lying for inspection and that no objections were lodged as is required in terms of the law;

That the first respondent only purportedly terminated the agency agreement on 14 February 2012 well after the confirmation of Annexture C in 2010.

It would appear that the first respondent while accepting the existence of the two wives and their entitlement her complaint is that she was not awarded any assets in Zimbabwe (See para(s) 57 – 59 of founding affidavits in the main matter). The question which one raises therefore is that if this is her grievance or concern, is such a dispute resolved through the grant of a declaratur sought, more so in the circumstances of this case. How would such a declaratur address the contents of Annexture C and how will it address the alleged participation and acquiescence of the first respondent through her agent in the whole process up to the confirmation of Annexture C by the Master? In some way these are the issues raised by the applicant (the first respondent in the main matter) in opposing the application in the main matter.

I now turn to the facts given rise to the interlocutory application.

On 29 June 2012 the applicant (the first respondent in the main matter) filed what is purported to be a notice of opposition to the court application which had been filed by the first respondent on 15 June 2012 and it is drafted as follows:

“NOTICE OF FILING

Take notice that the first respondent hereby files an opposing affidavit and supporting documents.”

The accompanied index shows that the first respondent’s opposing affidavit and annextures cover 91 pages.

The first respondent on 16 August filed an answering affidavit and did not raise issue with the purported notice of opposition. In fact the first respondent filed heads of arguments on 20 February 2013 and it is the heads of argument that the first respondent pointed out that no valid notice of opposition had been filed. The applicant conceded to this fact and both counsel for the applicant and the first respondent engaged each other to no avail culminating in the application for the upliftment of bar and condonation which is opposed.

It is common cause that the purported notice of opposition filed by the applicant in the main matter is defective as it is not in the form of Form No 29 A in accordance with r 22 (7) of the High Court Rules 1971 (“the Rules”). As a result of this defective notice of opposition the applicant was unable to file heads of argument in the main matter and was consequently barred in terms of r 238 (2b). The applicant seeks the upliftment of the bar in terms of r 84 although a court application has been made rather than a chamber application. The applicant also seeks condonation to be allowed thereafter to file a proper notice of opposition and regularise the other papers already filed of record together with the heads of arguments.

Mr Gama for the first respondent took the point that the applicant was enjoined to make a chamber application instead of a court application as per r 84(1)(a). I am not persuaded by this argument at all. In terms of r 229 C (a) and (b) of the Rules the adoption of the wrong procedure by the applicant as alleged cannot be the basis or ground for dismissing the application, moreso as Mr Gama has not shown any prejudice occasioned to the first respondent, let alone that such prejudice cannot be remedied by this court’s directions or an order of costs. In addition to that the court has such wide discretion in terms of r 4C to condone the applicant’s non-compliance. The point in limine lacks merit and is dismissed.

While both parties have filed very lengthy affidavits and heads of arguments I am of the view that this application can be decided on the following basis:

Whether there is a valid opposition to the application;

Whether it is fatal to the application that the applicant’s legal practitioner deposed to the founding affidavit;

Whether failure by the applicant to also seek extension of time is fatal to the application;

Whether it is just and equitable to uplift the bar and grant condonation; and

Costs.

I turn to these pertinent issues.

Whether there is a valid opposition to the application

It is not in dispute that the opposing affidavit filed by the first respondent is not properly authenticated as is required in terms of the High Court (Authentication of Documents) Rules RGN 995 of 1971. In terms of s 3 of the said Rules the first respondent’s opposing affidavit is not authenticated by a notary public. It is not in dispute that the first respondent is resident in the United Kingdom and that the opposing affidavit by the first respondent was allegedly signed by the first respondent in UK. Mr Gama for the first respondent made this concession but still urged this court to exercise its discretion in favour of the applicant by placing reliance of r 5 on the High Court (Authentication of Documents) Rules which provides as follows:

“Nothing contained in these rules shall prevent the acceptance as sufficiently authenticated by any court, tribunal or public office of any document which is shown, to the satisfaction of such court, tribunal or public office, to have been actually signed by the person purporting to have signed the same.” (my emphasis)

I am satisfied that no such evidence has been placed before this court. I share the views expressed by CHEDA J in Prosper Tawanda v Tholakele Ndebele HB 27/06 at p 4 of the cyclostyled judgment wherein the learned judge said:

“It is my view that there should be no compromise by seeking to accept a questionably authenticated document either for academic or expedience purposes. The rules of this court have listed certain officials who are authorised to authenticate documents and those rules should be applied in toto.”

The first respondent’s opposing affidavit is not authenticated by a notary public. I am not satisfied that it has been shown that it was signed by the person purporting to have signed it. The point in limine raised by the applicant is upheld. There is therefore no valid opposition to the application. This finding disposes of the matter. However assuming I may be wrong in this regard, I proceed to consider the other issues.

Whether it is fatal to the application that the applicant’s legal practitioner deposed to the founding affidavit

It is common cause that the founding affidavit in this matter was deposed to by one Ms Theron the applicant’s legal practitioner and not by the applicant. The point made by Mr Gama for the first respondent that such a founding affidavit is irregular and defective. The applicant’s legal practitioner did not explain why the applicant could not depose to the founding affidavit. Reliance was placed on the case of Jean Hiltunen v Osmo Juhani Hiltunen HH 99-08. Mr Gama further submitted that the applicant’s legal practitioner deposed to facts which are not within her knowledge thus and giving inadmissible hearsay evidence.

While I agree with Mr Gama’s submissions in relation to the principles enunciated in the cases cited; my view is that this requirement should be considered in the context of each case. In casu, the issue relates to failure to file a proper notice of opposition as is required by the rules. This is a technical and procedural matter which the applicant’s legal practitioner should explain rather than the applicant. The duty to file a proper notice of opposition falls squarely on the shoulders of the applicant’s legal practitioner. The applicant’s legal practitioner went on to explain that this was an inadvertent error caused by the bulky nature of the papers filed (over 90 pages). To hold otherwise would amount to be adopting an overly formalistic approach see Silver Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H) at 496 D.

As regards the prospects of success the applicant’s legal practitioner referred, in my view properly to the applicant’s opposing affidavit in the main matter. I am therefore satisfied that the founding affidavit was made by the applicant’s legal practitioner who is in a position to positively swear to the facts, she is the one seized with the matter as she is the person who filed a defective notice of opposition and she can swear as to whether the applicant has any prospects of success in the main matter. I am fortified in the view by the pertinent pronouncement made by GUBBAY CJ (as he then was) in Chiadzwa v Paulkner 1991 (2) ZLR 33 (S) at 36 H – 37 A:

“Where the affidavit is not that of the plaintiff himself, the deponent while not requiring any special authority from the plaintiff to make the affidavit, must belong to a particular class of persons, namely those who can swear positively to the facts … It must appear ex facie the affidavit that the deponent belongs to such class of persons.”

The applicant’s legal practitioner in the circumstances of this matter at hand belongs to such class of persons. I therefore find nothing irregular in the manner in which the affidavit placed before the court by the applicant’s legal practitioner has been deposed.

Whether failure by the applicant to seek extension of time is fatal to the application

Mr Gama for the first respondent is of the view that the applicant should also have sought an extension of time in terms of r 229. I am unable to comprehend, let alone to be persuaded by this submission. Mr Gama submitted that in the absence of such an application for extension of time the application remains invalid. My understanding is that the applicant filed a defective notice of opposition (improperly termed notice of filing). The defective notice was filed within the prescribed time limit. The applicant’s problem is that such a notice for the purposes of opposing the main matter is invalid. In addition to that the applicant has already been barred. The applicant therefore seeks to rectify what is already before the court, albeit defective, hence the condonation. It is within the discretion of this court to condone such an error (r 4 C) and if the bar is uplifted the applicant can be put on terms and the matter proceeds in terms of the Rules. This point was brought to home in the case of HPP Studios (Pvt) Ltd v Associated Newspapers of Zimbabwe Private Limited 2000 (1) ZLR 318 (H) at 328 A where it was held that once a party’s intention has been drawn to some defective proceeding it becomes necessary for such a party to make an application to rectify the defect either by applying to uplift the bar or by seeking condonation. This is precisely what the applicant has done.

Whether it is just and equitable to uplift the bar and or grant condonation

It is trite that a bar can always be lifted or set aside on good cause. The applicant should give a satisfactory explanation for failure to comply with the rules and also briefly set out the defence on the merits which is relied upon. The same applies where a party is seeking condonation. See Mashave & Ors v Zupco & Anor 2008 (1) ZLR 478 (S) at 481 F.

The explanation given by the applicant through his legal practitioner is that a defective notice of opposition was filed as a result of an oversight on the part of the legal practitioner which could have been occasioned by the voluminous bundle of documents to be filed. I find that explanation to be simple and straight forward. It is not beyond human experience for such errors to occur. While legal practitioners are expected to exercise utter most care in filing pleadings such inadvertence will always occur, and in the absence of gross negligence that should not be the basis to non-suit a party. As I said I am still baffled why the first respondent could not accede to such a simple issue and have the defect corrected amicably. In the circumstances such an error is not only understandable but should be condoned.

It is also the first respondent’s view that the application should fail as the applicant has no prospects of success in the main matter.

The requirements for declaring a declaratur are now settled in our law. Whilst the court still retains the discretion to grant a declaratur certain requirements should be met see Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) at 343 G-H. In casu it is common cause that the first respondent who is seeking declaratory order in the main matter is an interested party. She is one of the surviving spouses and a beneficiary. She therefore has a direct and substantial interest in the administration of the estate of the late Existo Francis Hapaguti (her late husband). It is therefore well within her rights in proper circumstances to seek a declaratur in relation to what she is entitled to from the estate of her late husband. The first respondent’s interest indeed relate to her existing rights and possibly future and contingent rights.

Be that as it may the applicant is opposed to granting of a declaratur in the main matter. At this stage I am not seized with the main matter. All I have to do is to assess whether the applicant has prospects of success in opposing the order sought.

I am of the firm view that the applicant has prospects of success in the main matter. While it is incorrect that that estate has been wound up, administered and distributed, the correct position as per Annexture C is that such a process has commenced in terms of the Act and that certain decisions have not only been made but confirmed by the Master. Annexture C shows that some immovable property has been disposed of and or transferred to third parties (beneficiaries) including the first respondent’s three children. All this has far reaching consequences as regards the state of the estate’s assets in Zimbabwe.

The applicant’s view that the first respondent seeks a review of the matter or to reverse what already has been done in the administration of the estate under the guise of a declaratur cannot be said to be without basis. In short, the first respondent’s entitlement as already said is provided for in s 68 F (2)(b) of the Act. That position is common cause between the parties. The question which the applicant rightly asks is why would the first respondent wish the court to grant a declaratur for what is provided for in the relevant Act? The courts have steadfastly declined to decide on abstract, academic or hypothetical questions. See Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation supra at 343 H where it was held:

“The court will not decide abstract, academic or hypothetical questions unrelated to such interests.”

As already discussed in my introductory remarks the first respondent in her founding affidavit does not deal with the issue of why she requires a declaratur at this stage and how it would affect the status of the estate.

The applicant’s view is that the application in the main matter can be successfully opposed as the first respondent did not exercise her rights at the relevant time through her agent or worse still acquiesced to the whole process. It is the applicant’s contention that the first respondent is bound by the actions of her agent. The allegation by the first respondent that she was not consulted in the whole process to date and that she did not agree to the distribution or inheritance plan is contested. The Master’s report is at variance with the first respondent’s position and agrees on many contentious issues with the applicant. As already said the Master has since approved and confirmed the distribution plan annexture C albeit an interim account on 12 February 2010 and the first respondent’s agent as per the letter dated 4 March 2010 confirmed to the applicant the first respondent’s acceptance of the distribution plan which the agent describes as a product of a protracted process characterised by initial disagreements and in fighting.

It is clear to my mind that all these issues raised by the applicant suffice to establish good and bona fide prospects of a successful opposition of the main matter.

In relation to costs, each party has sought costs against each other either debonis propriis or on a higher scale. There is no need for the court to be detained by this issue. As things stand both parties are to blame for this interlocutory application. The applicant is the one who made the error of filing a defective notice of opposition. The first respondent in my view needlessly mounted a misplaced spirited opposition to this simple application.  It is only fair and just for each party to bear its own costs.

In conclusion I am satisfied that there is in fact no valid opposition to this application. Further, even if one was to hold otherwise I am satisfied the founding affidavit deposed to by the applicant’s legal practitioner is properly filed and valid. I am satisfied that the error made by the applicant’s legal practitioner in filing a defective notice of opposition in the main matter is a bona fide oversight. The applicant should be allowed to oppose the main matter as good and sufficient cause has been demonstrated. Consequently the bar operating against the applicant should be lifted and the non-compliance with the Rules of the court condoned to enable the applicant to file the said notice of opposition, regularise the opposing papers already filed of record and file heads of argument within a specified period.

For the record, the main matter is not yet ready for hearing and is not a matter before me. I have referred it to the Registrar for it to be properly set down and allocated following the due process.

In the result it is ordered that:

The bar that is operating against the applicant in the main matter be and is hereby uplifted.

The applicant is to file the standard notice of opposition Form 29A in case number HC 6519/12 within 48 hours of this order being granted.

Should the applicant timeously comply with clause two (2) above then:

The opposing affidavit and annextures which were lodged under the main matter shall stand as the opposing papers to the main matter.

The applicant shall within a further period of ten (10) days file Heads of Argument in the main matter.

Each party is to bear its own costs.

Scanlen & Holderness, applicant’s legal practitioners

Madzivanzira, Gama & Associates, 1st respondent’s legal practitioners