Cecilia T Mathabire v Shingirai Victor Ngwenya (In his capacity as the Executor Testamentary in the Estate Late Emmanuel Takawira Tinarwo DR 452/09) and Master of the High Court N.O

### Preamble
1
HH 522-24
HCH 3496/23
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CECILIA T MATHABIRE

versus

SHINGIRAI VICTOR NGWENYA

(In his capacity as the Executor Testamentary in the Estate Late

Emmanuel Takawira Tinarwo DR 452/09)

and

MASTER OF THE HIGH COURT N.O

(DR 452/09)

HIGH COURT OF ZIMBABWE

MUCHAWA J

HARARE; 1 July & 15 November 2024

Opposed Matter

Mr A Jakarazi, for the applicant

Mr R T Mutero, for the 1st respondent

No appearance for the 2nd respondent

MUCHAWA J:  This is a court application for a declarator made in terms of s 14 of the High Court Act [Chapter 7:06].

The draft order sought is set out as follows:

“IT IS ORDERED THAT;

The application for deceleratur (sic) be and is hereby granted.

The second respondent’s acceptance of the Last Will and Testament of the Late Emmanuel Takawira Tinarwo be declared null and void and set aside.

That the appointments (sic) of first respondent as the executor testamentary and administrator of the estate of the Late Emmanuel Takawira Tinarwo be declared to be invalid and set aside.

That the last will and testament of the Late Emmanuel Takawira Tinarwo held under LW239/01 is declared invalid and set aside.

That all the entire proceedings by the second respondent be nullified and set aside.

An order that first respondent pays costs of suit.”

The application is opposed.  I heard the parties and reserved my judgment.  This is it.

Brief Background Facts

The late Emmanuel Takawira passed away on 15 January 2009.  During his lifetime he was first married to Baholo Tinarwo (nee Kikine) as his first wife.  At the time of his death, he was survived by the applicant as a customary law wife and several children.

The first respondent is a brother to the late Tinarwo, whilst the second respondent is responsible for administration of deceased estates and is cited in that official capacity.

The late Tinarwo’s estate was initially treated as intestate and the applicant was appointed as executrix dative as the surviving spouse.

However, it was discovered that the late Tinarwo had in fact executed a Last Will and Testament dated 20 June 2001 which was registered with the second respondent under LW239/01.  Upon being notified of the existence of the will, the second respondent accepted the will and advised that it would be the one to be used in the administration of the estate.  The first respondent assumed the office of Executor Testamentary and Administrator of the late Tinarwo’s estate.

The applicant filed an application for nullification of the first respondent’s appointment as executor and administrator of the estate under HCH 2369/23 and got a default judgment which was subsequently rescinded.  Upon receipt of the notice of opposition, she withdrew the earlier application and filed this current one.

The applicant’s submissions in support of the application

The applicant sets out her case in the founding affidavit as follows:

that upon the emergence of the will, the second respondent wrote to her on 21 August 2015 advising of this fact.  The will was accepted and the effect was the appointment of the first respondent as executor testamentary and it set aside her appointment as executrix dative.  Her concern is that the letter to her was silent on these two facts as the effects of the acceptance of the will.

she applies for a declarator seeking an order declaring the Last Will and Testament as invalid, null and void.

she also wants an order setting aside the appointment of the first respondent as executor testamentary and administrator of the late Tinarwo’s estate the basis of invalidity.

she complains of glaring irregularities and absurdities in the conduct of the second respondent from the point of registration of the estate to date.  Nothing further is said on this except her gripe with the contents of the letter of 21 August 2015.

the applicant has several complaints about the will itself which she says has many inconsistencies, defects and gaps.

I list these below;

She avers that the will was drafted at a time when the testator was heavily sick and not in his right mental state and states that he was vulnerable and susceptible to any undue pressure.  It is averred that the will reflects the intentions of his half brother Shingirayi Victor Ngwenya.

That it is inconceivable that the late Tinarwo would omit the applicant as a beneficiary as she was his customary wife, they had been together for years and had a child together.

That the will was forged by another person who is not the late Emmanuel Takawira Tinarwo though it was purportedly drafted by Messrs Coghlan, Welsh and Guest.

That the wrong spelling of the applicant’s daughter’s surname as “Mathabile” instead of “Mathabire” shows the will was forged by someone who has some Ndebele language background.

That the signature on the will is forged and they had the dates backdated.

The will did not therefore emanate from the deceased and the estate cannot be administered in terms of such will.

In oral submissions before me, the applicant’s case was further expounded as follows;

The will which surfaced is challenged in that at the time of her appointment as executor, the first and second respondent did not produce it.

That the will written by the second respondent stripping her of being executrix did not advise her on the circumstances of discovery of the will and who tendered it and it further does not remove her from the office of executot nor appoint first respondent to that office.  It therefore does not advise her of when she ceased to be executor.  All it does is advise that the Master’s fees have been paid by one Tapfumaneyi Bernard Tinarwo who is a mere beneficiary.

The applicant argues that her rights in terms of the law have not been lawfully taken away and this court must pronounce on that as there is a will and the second respondent cannot mero motu annul letters of administration.  The office of the executor is alleged to be important and it is contended that due to the legal consequences flowing from it, it should not be lightly taken away.

Regarding the will, it was highlighted that the will speaks to a wife that no longer existed at the time as well as non-existent companies.

The bone of contention seems to be that the applicant resides at the matrimonial home as the surviving spouse and the acceptance of the will strips her of her rights to the matrimonial home.

On the first respondent’s technical objection that the application is not proper as she has used a wrong procedure, instead of filing an application for review, it is argued that the application for a declarator is properly before me.

The case of Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994(1) ZLR 337(S) @ 343 – 344 was relied on to argue that the application is indeed properly before me as the condition precedent to the grant of a declaratory order is that the applicant must be an interested person with a direct and substantial interest in the matter.  The judgment of this court is considered as one that could prejudicially affect such direct and substantial interest.

That case makes clear that the interest must relate to an existing future or contingent right.  However, the existence of an actual dispute between the parties is not a statutory requirement to the exercise by the court of jurisdiction.  Additionally, it was held that the availability of another remedy does not render the grant of a declaratory order invalid.

Furthermore, it was contended that this is not a review which is disguised as an application for a declarator.  Reference was made among others, to the case of Mangwana v Kasukuwere HH 418/23.  In that case it was concluded that one cannot argue that a declarator is a disguised application for review where such application does not raise any grounds for review and is filed in terms of provisions which have nothing to do with which review.  It was further held that even if the applicants could have brought a review application, that should take nothing away from the application for a declarator.

The applicant had also raised a preliminary point to the effect that there is no opposing affidavit as the one which had been filed had not been commissioned by a known commissioner of oaths.  This point was not pursued after the respondent filed a properly commissioned affidavit which the applicant accepted.

The first respondent’s submissions in opposition of the application

Mr Mutero submitted that the applicant has employed the wrong procedure.  Whilst conceding that a review and a declarator are interviewed, it was argued that they are not synonymous but are separate and distinct from each other.

A review application was said to be available where one seeks to impugn a decision made by a court of inferior jurisdiction, a quasi-judicial office or an administrative authority.

On the other hand, the court’s exercise of jurisdiction in terms of s 14 of the High Court Act is said to be limited to inquiring into and determining any existing, future or contingent right or obligation wherein and interested party has approached it.

The case of Musara v Zinatha 1992(1) ZLR 91CH was referred to for the point that there is no magic in the remedy of a declaratory order and the court will not easily grant this where the applicant has other available remedies available to her which she spurned out of tardiness or poor legal advice.

In para 15 of the founding affidavit, the applicant complains of gross irregularities in the conduct of the Master in authoring the letter, amongst other things.  It is argued that such administrative conduct should be challenged through review in terms of common law or s 26 as read with s 27 of the High Court Act or s 4 as read with s 3 of the Administrative Justice Act.

It is contended that what is before me is a reviewable act as the conduct of the Master is what is in issue.  The case of Geddes Limited v Tawonezvi SC 34/02 is referred to in arguing that a review ought to be filed in eight weeks and the declaratory order is part of the relief in a review.  The applicant is alleged to be simply trying to run away from the eight-week period.

The right to grant a declarator is said to be discretionary as per Munn Publishing supra and that a party trying to run away from the Rules when they are out of time should not be indulged by the Court.

The court was urged to look at the grounds and relief sought to determine whether this matter is an application for review disguised as a declarator as per Geddes v Tawonezvi supra.  It was prayed that the matter be struck off the roll.

On the merits, Mr Mutero submitted that applicant has pleaded one case and argued another and this is improper as per Medilock Zim (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/18.

It is alleged that in the founding affidavit the applicant complains of the acceptance of the will by the Master from para(s) 12 to 29.  However, it is averred that now in oral submissions the applicant is arguing against the contents of the letter of 21 August 2015 thereby changing her case.  The relief sought is alleged not to relate to the letter.  The real case placed before the court is that the Master misdirected himself by accepting a forged will.

Mr Mutero argued that the letter can be easily separated from the acceptance of the will as it was done after the will had been accepted.  The case is therefore not about her removal as executrix but acceptance of the will as appears in the draft order.

The issues raised in oral submissions that the will talks of a non-existent wife and that applicant lives in the house are said to have been raised only then as they do not appear in either the founding affidavit or the answering affidavit.  The court was urged to disregard these new facts.

On the allegation by the applicant that the first respondent accepted her appointment, this is alleged to be unsupported by the record as the first respondent did not participate in her appointment as executrix.

In addressing the substance of the case, Mr Mutero submitted that the will complies with the prescribed formalities in the Wills Act [Chapter 6:06].

On the averment in para 18 of the founding affidavit, that “the testator is said to have been heavily sick,” it is argued that this is unsustainable as no evidence of this has been tendered but the applicant relies on speculation.

The same fate is said to be suffered by para 24 of the founding affidavit where it is alleged “believes there was a lot of undue influence,” without supporting evidence.

Addressing the averment in para 19 that there is no way she, as a customary wife would have been left out, Mr Mutero pointed to the case of Chigwada v Chigwada & Ors SC 188/20 wherein it was held that a spouse can be disinherited in a will.

On the allegations of fraud set out in para 20 of the founding affidavit Mr Mutero argued is not be presumed and just pleaded but must be proved as per AD Medical Supplies Pvt Ltd & Ors v Murry & Ors HH 467/23 and Chikwavira v Mutonhora & Anor HH 224/16.  In this case, it is stated that no such proof was availed.

The allegations of forgery set out in para(s) 21 and 27of the founding affidavit wherein the applicant says that the will is a forgery, and the signature was forged and the date was backdated is said to be a serious allegation which impugns the integrity of the legal practitioner who assisted the deceased Mr Kuhuni, who was then with Coghlan and Welsh.  It is contented that the applicant should have secured Mr Kuhuni’s evidence on his role and in failing to do so, the applicant violated the best evidence rule particularly as Mr Kuhuni is available.  The court was referred to the case of Chamisa v Mnangagwa & Ors CCZ 20/19.

The allegations of impropriety are said to also affect the Master especially on backdating as the will was lodged with the Master under reference LW 239/01 as appears on p 13 of the record.

Mr Mutero dismissed the challenge to the will as not authentic on account of misspellings as not adding anything to the applicant’s case as she too misspelt the name Coghlan and she has failed to attach the birth certificate for the child whose name was misspelt.

On costs it is argued that the applicant should be saddled with costs on a higher scale as she is challenging what the Supreme Court has already settled in Chigwada v Chigwada supra and does not relate to this case at all but relies on High Court judgments.

The filing of the application is alleged to be therefore an abuse of court process and frivolous.

Furthermore, the applicant is blamed for making disparaging remarks about a senior legal practitioner and the Master without affording them a chance to explain themselves.

It is prayed that on the merits, the matter be dismissed with costs on an attorney client scale.

Applicant’s submissions in reply

Mr Jakarazi persisted with the argument that the present application is indeed properly before the court.  Reference was made to the case of Kunaka v The Master & Ors HH 298/23 whose facts were said to be identical to the matter in casu.  Therein the removal of an executor was said to have been improper by the Master and reinstatement sought was granted through a declaratory order.

On the merits, Mr Jakarazi insisted that every argument he raised is founded in the founding affidavit.  Para 10 is said to raise the complaint in respect of the letter of the Master.

The fact that there are no longer any companies was said to be common cause to the parties as the first respondent in para 31 of its opposing affidavit is conceding that the only property in the estate is the Marlborough house.

On costs Mr Jakarazi pointed out that the founding affidavit does not make either positive or negative allegations against Mr Kuhuni and the need to invite him to comment did not therefore arise as he is not mentioned in the papers.  The same is said to apply to the Master who it is alleged was not used to have participated in the forgery.

The case of Chigwada v Chigwada supra was distinguished as not having dealt with a declarator.  It was therefore prayed that costs should not be awarded on a higher scale as there is no abuse of court process.

Whether this matter is properly before the court

Has the applicant employed the wrong procedure given the first respondent’s concession that a review and a declarator are interviewed?

Can it be concluded that the applicant has employed the remedy of a declaratur to go around the eight week period within which a review has to be lodged?

The case of Geddes v Tawonezvi supra is instructive on how I should go about determining this issue.  Malaba J A (as he was then) held as follows:

“In deciding whether an application is for a declaration or review, a court has to look at the grounds of the application and the evidence produced in support of them.  The fact that an application seeks a declaratory relief is not in itself proof that the application is not for review.  In City of Mutare v Mudzime & Ors 1999 (2) ZLR 140(S) Muchechetere JA quoted with approval from Kwete v Africa Publishing Trust & Ors HH 216/98, where at p 3 of the cyclostyled judgment Smith J said:

“It seems to me, with all due respect that in deciding whether or not, in an application for damages or reinstatement arising from wrongful dismissal from employment, the provisions of r 259 of the High Court Rules, 1971 should look at the grounds on which the application is based, rather than the order sought…It seems to me anomalous that one should be permitted to file an application for review well out of time, without seeking condonation, as long as a declaratory order is sought.  A declaratory order is after all, merely one species of relief available on review.”’

The case of Musana v Zinatha supra warns the court against easily granting a declaratory order where the applicant, out of tardiness or poor legal advice, spurned other remedies available to her.

The applicant refers the court to the case of Mangwana v Kasukuwere supra which states that one should look closely at the application for a declaratur and see whether it raises any grounds for review and the provisions it is filed under.  That case held too that if the applicant could have brought a review application, that should take nothing away from the application for a declaratur.

In setting out the nature of the application, the applicant’s case is really raising issue with the acceptance of the will by the Master.  She attacks that decision and seeks an order setting aside that decision.  The rest of her averments set out why such acceptance was wrong at law as already laid out above.  The appointment of the first respondent as executor testamentary flows from the acceptance of the will as does the penning of the letter of 21 August 2015.

The draft order terms tie in with my analysis.  In para 2, she wants the second respondent’s acceptance of the will to be set aside.  Once this is done, the appointment of the first respondent as executor testamentary would fall away.

Para 3 of the draft order seeks that the last will and testament itself be declared invalid and set aside presumably on the grounds of the alleged many inconsistencies, defects and gaps in it.

It appears to me that the challenge to accepting the will by the Master falls under an application for review because the applicant seeks to impugn the decision of the Master, an administrative authority in having accepted the will.  This happened in or about August 2015.  The applicant therefore had eight weeks in terms of r 259 of the High Court Rules, 1971, in which to file an application for review.  She did not.  Her application for a declarator is therefore clearly a way to go around the eight-week period which has hopelessly run out from August 2015.

On the Merits

If, for a moment one must rely on the case of Mangwana v Kasukuwere HH 418/23 which held that even if the applicants could have brought a review application, that should take nothing away from the application for a declarator, would the outcome be different? I think not.

As I have already established, the pith of the applicant’s case is that the will should not have been accepted because of alleged many inconsistencies, defects and gaps. Once I go through these, I should be able to dispose of the matter. The issue of the first respondent’s appointment as executor testamentary stands on the validity of the will. The letter of 21 August 2015 was penned after the acceptance of the will.

The applicant is alleging lack of capacity to make a will by the deceased. It has been held that where a party alleges invalidity of a will due to incapacity, then they must prove it. In Matanga v Denhure and the Master HH 87-08, it was held that there is need for medical evidence from those present at the writing of the will, in particular the need for an expert to provide this.

On allegations of forgery the court stated in Morris v Morris and another HH 71-11 that where allegations of forgery of a will are made, there is need for forensic evidence.

In the case of Rogers v Rogers S-64 -07, the court held that there is need to show that undue influence influenced the making of a will. It was also held that undue takes many forms and it does not necessarily follow that because undue influence was applied on the testator, it necessarily caused the execution of the will. One alleging undue influence must establish this from the facts alleged. It was noted too that a testator may still make a valid will expressing his or her wishes notwithstanding the application of undue influence.

In the present case, the applicant has not availed any medical report to support that the deceased was heavily sick at the time of the making of will nor his mental state. There are no supporting affidavits from those present at the drafting of the will. There is no forensic evidence to support the allegations of forgery made as well as the backdating of the will which was lodged with the Master upon its execution. All the applicant’s attacks on the will are mere allegations without any evidence.

The question of whether a will must be held to be invalid solely because the testator has disinherited a surviving spouse had seemingly conflicting positions for a long time in the High Court. One set of the judgments held that a surviving spouse can be disinherited in a will on the basis of freedom of testation. On the other hand, some judgments held that a will that disinherits a surviving spouse is invalid (see Estate late Wakapila v Matongo N.O and others 2008(2) ZLR 43 (H), Rochie v Middleton HH 198-16, Chimbari NO v Madzima and others HH 325/13 and Chiminya v Chiminya 2015(i) ZLR 450 (H) and Majuru v Majuru HH 404-16)

This issue was however decisively settled by the Supreme Court in the case of Chigwada v Chigwada SC188/20. It was held as follows:

“The issue is not that the person to whom the testator was married is disinherited. A surviving spouse can be the subject of disinheritance by a will complying with the formalities of a valid will as well as with the requirements for essential validity such as are prescribed under s 5 (3) of the Wills Act. Once a will complies with all the requirements of validity, its terms and conditions determine the question of succession to the deceased’s estate. Section 5 (3)(a) of the Wills Act should not be read to mean that a husband or wife cannot disinherit the surviving spouse by will. The requirements for the essential validity of the will are not to the effect that the testator must leave his or her estate to the surviving spouse.”

The above position is clear. It does not matter that in casu the applicant was married for five years to the deceased, or that they had a child together or even that the Chigwada (supra) case was not one for a declarator. It is noteworthy too that the deceased had also disinherited his first wife.

The alleged misspelling of the applicant’s child’s surname is indeed neither here nor there in the circumstances of this matter. The beneficiary is clearly identified. Misspellings happen a lot in the execution of documents or even misuse of words. In Hotz N.O v Goodman 1994 (2) SA 186 it was held that it is open to a court to rectify a will by the addition of words to reflect the true intention of the testator. Such a misspelling cannot invalidate a will.

My conclusion is that the applicant is clutching at straws she has no basis at law to impugn the will. Once this is settled, a letter advising that the deceased’s last will and testament has been accepted for administration purposes necessarily means that the nominated Victor Shingirai Ngwenya and failing him June Lungile Ngwenya is to be the executor and administrator of the estate. This flows naturally from the acceptance of the will. There can be nothing opaque about this.

The rest of the arguments by the applicant are not set out in the founding affidavit. It is trite that a matter stands or falls on the founding affidavit.

On the merits, the applicant’s case is hopeless.

Costs

The first respondent prayed for costs on a higher scale on account of the matter being an abuse of court process given the Supreme Court decision in Chigwada supra. It is also pointed out that the applicant has cast aspersions on the character of the Master and Mr Kuhuni, a senior legal practitioner who was then at Coghlan and Welsh and helped in the preparation of the will.

I have already found that the applicant’s excuse that this matter is for a declarator whilst the other was not, is a lame excuse. The applicable law is the same.

I found too that the applicant who knew from as far back as 21 August 2015 about the Master’s decision had 8 weeks in which to file an application for review. She did not. She took a whole 8 years to lodge the current application, in a clear effort to circumvent the 8-week deadline. As observed by Smith J in Kwete v Africa Publishing Trust supra, it is anomalous that the applicant is permitted to file her application for review extremely out of time, without seeking condonation, by simply saying its an application for a declarator.

It cannot be true that the founding affidavit does not make negative allegations against Mr Kuhuni and the Master. The will presented was prepared by Messrs. Coghlan Welsh and Guest, particularly Mr Kuhuni. In para 27, the applicant alleges that the signature on the will was forged or the testator was made to sign same when he was sick and not in his right state of mind. She further says “they had to have the dates backdated. These allegations point directly at the counsel who prepared the will and the Master despite there being proof on the face of p 13 of record the will was lodged with the Master in 2001 under LW 239/01. No opportunity was given to Mr Kuhuni and the Master to explain themselves.

It has not escaped the court’s attention that the applicant filed another application for nullification of the first respondent’s appointment as executor for which she got a judgment which was then rescinded and upon receipt of the notice of opposition she withdrew it.

Though costs on a higher scale are awarded only in exceptional circumstances they are merited in this case. It is clear that these proceedings are vexations and frivolous and should not have been launched at all given the clear position of the law. The first respondent has been unnecessarily put out of pocket by a party seeking to gate crash audience where the gates were closed and locked 8 weeks after 21 August 2015. There   has been no application for condonation. Sweeping allegations bordering on dishonesty which are unsubstantiated have been made.  Some of the allegations run contrary to the documents supplied by the applicant herself, such as the will.

Costs on the higher scale are therefore justified.

I accordingly order as follows:

The application for a declaratory order be and is hereby dismissed.

The applicant to pay costs on the attorney – client scale.

Madzima & Company Law Chambers, applicant’s legal practitioners

Lunga Mazikanza Attorneys, first respondent’s legal practitioners