Salma Ebrahim v Attiya Ebrahim (in her capacity as Executrix Dative of Estate late Basheer Ahmed Ebrahim) & 6 Ors

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                                                                                    HH 448-18
                                                                                   HC 2688/17
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SALMA EBRAHIM

versus

ATTIYA EBRAHIM ( in her capacity as Executrix Dative of Estate late Basheer Ahmed Ebrahim)

and

MURTLE MATILDA SHENAAZ EBRAHIM

and

AYYAZ EBRAHIM

and

BALLIM CHARTERED ACCOUNTANTS

and

THE MASTER OF THE HIGH COURT N.O

and

THE REGISTRAR OF COMPANIES N.O

and

THE REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 13 March and 2 August 2018

Opposed Application

Adv. S M Hashiti, for the applicant

Adv. T Mpofu, for the 1st and 4th respondents

M. Chitewe, for the 2nd and 3rd respondents

CHITAKUNYE J. This is an application for the confirmation of a provisional order granted on the 6th April 2017 after applicant had approached this court on a certificate of urgency.

The interim order granted on the 6th April 2017 was to the effect that:

All prospective sales or sales of movable or immovable assets belonging to the deceased or companies in which the deceased was a shareholder made without the consent of the Master of the High Court in terms of the Administration of Estates Act[Chapter 6:01] be and are hereby stayed.

The 6th and 7th respondents be and are hereby ordered to avail the files of any companies or deeds owned by the deceased estate to facilitate winding up of the deceased estate.

In this application the applicant seeks a final order in the following terms:

It be and is hereby declared that all prospective sales and sales of assets belonging to the deceased or companies in which the deceased was a shareholder made without the consent of the Master of the High Court are null and void and of no force and effect.

The 1st respondent be and is hereby removed as the Executrix Dative of the estate late Basheer Ahmed Ebrahim.

The Master of the High Court be and is hereby ordered to appoint a neutral Executor Dative in accordance with the Administration of Estates Act [Chapter 6:01] within 48 hours of the date of this order.

The 1st, 2nd and 3rd respondents be and are hereby ordered to pay costs of suit.

The applicant and the first and third respondents are siblings born of the second respondent and the late Basheer Ahmed Ebrahim. The late Basheer Ahmed Ebrahim (hereinafter referred to as the deceased) died intestate on the 15th April 2016 in China and left behind an Estate with various personal assets and various interests in some companies in Zimbabwe and South Africa. At the time of deceased’s death applicant was in the UK. She thereafter came back in time for the holding of an edict meeting at which first respondent was appointed Executrix Dative with the consent of all the beneficiaries including applicant.

Such appointment was made on the 14th July 2016. The first respondent is thus cited in these proceedings both in her personal capacity as beneficiary and in her capacity as executrix dative.

The fourth respondent is a firm of Chartered Accountants that was appointed by first respondent in her capacity as executrix to assist her with the books of accounts of companies in which the late Basheer had interests.

The fifth to seventh respondents were cited in their respective official capacities.

The applicant alleged that the first respondent has failed to give a proper account of matters surrounding the estate despite repeated demands. She alluded to the failure by first respondent to file a proper inventory of the deceased’s estate within six months of appointment as required in terms of the Administration of Estates Act. In this regard she referred to numerous correspondence between the parties on the issue as evidence of failure on the part of the first respondent to administer the estate properly thus warranting her removal from the office of executrix and her replacement with a neutral executor to be appointed by the Master.

The respondents on the other hand contended that first respondent has executed her duty well. In this regard first respondent attended to the issue of the delay by seeking more time due to the complexity of the issues with the estate as the deceased did not keep his accounts up to date. The Executrix had explained the state of the estate which led to her engaging fourth respondent to assist. The Master was informed about this and in a letter dated 23rd March 2017 gave the first respondent up to 7 April 2017 to lodge the inventory. Thus when the applicant filed this application on the 28th March 2017, the executrix had already been granted the extension.

In his report filed on the 3rd April 2017 the Master stated, inter alia, that:

“I confirm that the estate of the late Basheer Ahenmed Ebrahim is registered with this 	office and Attiya Ebrahim is the duly appointed executrix dative. Upon issuance of the letters 	of administration on 14 August 2016, the executrix filed proof of advertisement for claims 	and to date is yet to file the executor’s inventory as she is awaiting a company valuation by 	the appointed Chartered Accountant to facilitate 	compilation of same. The administration 	process is therefore work in progress and the delay in the valuation may not be attributed to 	the executrix. I have since written to the executrix dative and given her a deadline, being 7 	April 2017, for her to lodge an executor’s inventory...”

This clearly confirms that the fifth respondent was aware of the goings on in the administration of the estate. It is within the Master’s power to grant an extension of time within which the inventory must be lodged and he exercised this power in this case. In the circumstances respondents contended that there was therefore no basis for removal of executrix where she had been granted an extension.

The Applicant’s other ground of complaint pertained to what she termed unsanctioned sale of assets belonging to the estate.

Under this complaint applicant alleged that what triggered this application was the sale of an immovable property known as Stand 4454, Salisbury Township Lands, Salisbury to Zaila Enterprises (Private) limited. She stated that the property belonged to Artman (Private) limited, a company that was wholly owned by the deceased. Applicant further stated that the sale was sanctioned by second and third respondents in their capacity as directors of Artman (Pvt) Ltd. She had refused to consent to the sale and the fifth respondent had not given his consent. In her own words the applicant stated that this property was owned by Artman (Pvt) Ltd and directors of the company are the ones who sanctioned the sale.

Besides the sale of this immovable property, applicant also complained about the sale of Haulage trucks. Again from her own words she confirmed that the agreement of sale was between TECS Haulage (Private) limited a company in which the deceased held some shares and Ajara Trucking and Logistics (Pvt) Ltd. These trucks belonged to TECS Haulage (Pvt) Ltd and not to the deceased in his personal capacity.

The applicant’s complaint was that these trucks were sold without the Master’s consent and the executrix has failed to account to the Master for the sale. She thus concluded that the failure to account was a reflection of first respondent’s incompetence or dishonesty ordinarily in carrying out her duties as an executrix. This court must therefore prevent further unsanctioned sales of assets belonging to the estate.

The other basis for applicant’s complaint was the alleged thefts of the estate assets. She alleged that due to the executrix’s failure to properly manage the estate rampant thefts have occurred of computer boxes and tyres of trucks belonging to TECS Haulage Pvt)ltd  and that company documents have also been disappearing from the Registry of Companies and Deeds Registry.

In their response to the above, the respondents alluded to the fact that the applicant seemed oblivious of the distinction between the deceased’s shareholding in the companies and the assets of the companies. She appeared to be of the thinking that shareholders are the owners of the assets held by a company and so when they die company assets have to be dealt with in terms of the Administration of Estates Act as if such assets were personally owned by the deceased.

They also contended that the assets that were sold or whose agreements of sale had been entered into belonged to companies in which the deceased was a shareholder. The assets did not belong to the deceased and so no Master’s consent was required. The companies were being run by the directors and not by the executrix. Her interest was to protect the interests of the deceased through the shareholding in those companies.

The applicant failed to distinguish assets owned or belonging to the deceased in his personal capacity and assets owned by or belonging to companies in which the deceased was a shareholder.

It is that failure that led to the flurry of correspondence between applicant’s legal practitioners and first respondent’s legal practitioners and eventually to this application. The applicant apparently wanted the executrix to also obtain her consent, as a beneficiary in the estate, in the disposal of assets done by companies in which the deceased was a shareholder

The fourth respondent, through an affidavit by Mohmed Hanief Nanabawa, denied that he was the accountant for the deceased as alleged by applicant. He contended that he had just been engaged by the first respondent to assist in bringing the records of the various companies in which deceased had interests up to date. He contended that the records have a large amount of missing information and he had been engaged in his capacity as accountant to assist. In that regard he indicated what he had been doing on certain companies in which the deceased was a share holder.

The first respondent contended that she did not hold out that fourth respondent was the custodian of financial records and documents for companies that the deceased had shares in but that she had engaged the firm to assist in secretarial work, updating records and carry out evaluations.

As regards the allegations that she had failed to perform, first respondent denied that she had deliberately or negligently failed to provide the inventory. She contended that she, through her erstwhile attorneys, kept the fifth respondent and applicant’s legal practitioners informed about the problems she was encountering as deceased did not keep accurate records hence the need to engage fourth respondent. She advised them that fourth respondent had requested for more time. The delay in preparing the inventory was thus not deliberate

The first respondent refuted most of the allegations made against her in the administration of the estate. As regards the issue of assets that were sold or were about to be sold, she clearly indicated that those were company assets and not personal assets of the deceased. She recognised that deceased had shares in the companies but that did not mean the assets were his. In any case first respondent said she informed applicant as beneficiary in the shares in those companies but in some instances applicant refused to give her consent. Other beneficiaries gave their consent to what she was doing in companies in which deceased had shares. This did not, however, involve the selling of the deceased‘s shares. The sale of the assets of the companies referred to were being conducted at the behest of the directors of the respective companies.

The second and third respondents’ position was basically in tandem with what first respondent had stated. They confirmed being consulted by first respondent and giving their consent. They also alluded to the need to distinguish between assets owned by deceased in his personal capacity and assets owned by companies in which deceased was a share holder.

A perusal of the affidavits and other documents filed of record show that this was a family discord. It was apparent that whilst the other 3 beneficiaries got along well, the applicant would not accept what first respondent was doing.

It was in such circumstances that a distinction was not drawn between assets owned by deceased in his personal capacity and assets owned by companies in which deceased had shares. Applicant seemed intent on treating the assets the same whilst other beneficiaries understood that the two sets of assets should be treated differently.

The first – third respondents also contended that the applicant had no locus standi to bring an application for the removal of an executrix as this was the prerogative of the Master of the High Court. They contended that applicant should have approached the Master with her complaints and the Master would have in turn proceeded in terms of section 117 of the Act if he considered that the complaints had merit.

From the submissions made the following issues fall for determination:

Whether or not Applicant has locus standi to bring the application for removal of the executrix in the circumstances of this case;

Whether the declaratur has any basis at law;

Whether or not the applicant has fulfilled the requirements of an interdict and a mandamus.

Whether or not Applicant has locus standi to bring the application for removal of the executrix in the circumstances of this case;

The respondent’s counsel contended that the basis for which applicant sought the removal of the executrix fall within the grounds provided for in terms of s 117 of the Administration of Estates Act. It was thus incumbent upon the applicant to first exhaust domestic remedies availed by statute before approaching this court. The grounds upon which applicant sought the removal of the executrix included that:

She has not properly conducted her duties as an executrix;

She has allowed the property of the estate to be stolen;

She has not prepared the inventory within the required period; and

She is selling assets of the estate without 5th respondent’s consent.

The respondents’ contended that such grounds fall within what is provided for in the Administration of Estates Act as the basis for which the Master may seek the removal of an executrix.

The applicant’s counsel on the other hand argued that the applicant has locus standi in that:

Firstly the relief she is seeking is not only restricted to the removal of an executrix, it transcends that and seeks consequential relief only obtainable from this court;

Secondly, the position is not exclusive to her remedies nor is it a bar to approaching the court particularly in circumstances where the Master himself is complicit in the untoward activities complained of.

Thirdly, and in any event, the position of law does not state that section 117 applies to the exclusion of any other law. On this point counsel referred to the words of MAKARAU JP (as she then was) in Katirawu v Katirawu 2007 (2) ZLR 64 at 69D-G  leaned judge opined aptly  that:-

“While s 117 (1) empowers the Master to approach the court for the removal of an executor for the listed grounds, in my view, such a power granted to the Master was not intended to take away the right of all those having an interest in the estate from approaching the court at common law to have the executor removed if they can establish to the satisfaction of the court that the continuance in office of the executor does not augur well for the future welfare of the estate and beneficiaries. The power granted to the Master by s 117 is, in my view, complementary to the inherent power of the court at common law. In any event, if it was the intention of the legislature  to revoke the common law power of the court in this regard, it would have done so in express language, for the jurisdiction of the court is not ousted other than in clear language.

Applying the above law to the facts before me, it is my finding that the applicant as beneficiary in the estate has the capacity to approach this court at common law to move for the removal of the first respondent as an executor. Her application was brought at common law as she alleged fraud. She is not alleging any of the grounds listed in s 117 for the removal of the first respondent as executor of the estate.”

Applicant’s counsel argued that it is apparent therefore that applicant had locus standi. It is however pertinent to note that in Katirawu case (supra) the learned Judge alluded to the fact that this was a case brought not on the grounds stated in s 117 but on allegations of fraud.

Equally in Tawanda Muzungu& Others v Blandina Muzungu & Others HH172/15 where the allegations of fraud were raised for seeking the removal of the executrix, but the Master had not acted on them, this court granted the order sought.

What is evident is that a beneficiary has the capacity to approach this court at common law.

In casu, the issue is whether, as the grounds fell within s 117, it was appropriate for applicant to approach this court without exhausting domestic remedies availed in sections 116 and 117 of the Administration of Estates Act. In this regard it is apposite to consider the relevant sections.

Section 116 (1) of the Administration of Estates Act empowers the Master to inquire into the conduct of an executrix in these words:-

“(1) If it appears to the Master that any executor, tutor or curator is failing or neglecting to perform satisfactorily his duties or to observe all the requirements imposed upon him by law or otherwise in regard thereto, or if any complaint is made to the Master by any creditor, legatee or heir in regard thereto, the Master shall inquire into the matter and take such action thereon as he shall think expedient.”

As regards the powers of the Master on the removal of an executrix where she is found to be wanting or unsuitable, s 117(1) provides that:-

“(1) The Master may apply to a judge in chambers for the removal of an executor, tutor or curator from his office on the ground—

(a) …………..; or

(b) that he has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law; or

(c) …………..; or

d) that in his opinion such person is no longer suitable to hold such office;

and the judge may, upon such application, remove the executor, tutor or curator concerned from his office or make such other order as he sees fit.

(2) Where an executor, tutor or curator has been removed from his office the Master shall revoke any letters of administration or confirmation, as the case may be, which have been granted to such person.”

In casu, the applicant’s complaint falls within the provision of s 117 (b), that the executor has failed to perform satisfactorily or as required or (d) that she is no longer suitable to hold the office.

It is to the Master that complaints pertaining to the conduct of an executrix should be directed at the first instance. It is the Master who is given the mandate to investigate allegations of misconduct and, as supervisor of executors, decide whether to apply for their removal from office or not.

In Matsinde v Nyamukapa 2006(2) ZLR 200(H) at 204D-F MAKARAU JP (as she then was) made this point clear when she said that:

“I pause here to observe that the removal of an executor dative in my view should primarily be done by the Master on good cause shown. The appointment of an executor is an administrative function in the hands of the Master. It is therefore to him that allegations of unbecoming conduct by an executor should be made in the first instance. The decision of the Master to remove or to retain the executor after complaints have been lodged with him is then brought on review to this court on the recognised grounds of review of an administrative decision.

None of the above procedure was observed in the application before me. On that basis alone I would dismiss the application.”

It is imperative that where a statute has provided domestic remedies a litigant should resort to such unless there are good and sufficient reasons for skipping the remedy so availed as a port of first instance. This point was aptly stated by ADAM J in Manyonda & Others v Posts & Telecommunications Corporation 1999(2) ZLR 81 at 86F-G, as follows:

“Where domestic remedies provide effective redress in respect of the complaint and where the unlawfulness alleged has not been undermined by the domestic remedies themselves, the applicant should exhaust such remedies unless there are good reasons or special circumstances for applying to this court.”

It has thus been laid down in a number of cases, in our jurisdiction, that where domestic remedies are capable of providing effective redress in respect of the complaint and secondly where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so.

See Tutani v Minister of Labour & Others 1987(2) ZLR 88(H); Girjac Services (Pvt) Ltd v Mudzingwa 1999(1) ZLR 243(S); Muzengi v Standard Chartered Bank Zimbabwe Ltd & Another 2002(1)ZLR 334 (S) at 338A-B; and Moyo v Forestry Commission 1996 (1) 173(H) at 191D-192B

The applicant in her founding affidavit did not explain why she did not complain to the Master in terms of section 116. In my view, the Master is better placed to inquire into and to attend to the principal basis of the complaint.

Even in her answering affidavit applicant did not state why she did not follow the laid down procedure save to allege that as a beneficiary she had no other remedies available except to approach this court to protect the assets of the estate. Surely it was not true that she had no other remedy as s 116 is clear on what someone with a complaint on the conduct of an executor in the administration of an estate can do.

In his submissions counsel for the applicant tried to justify the route taken by arguing that the relief sought is not only restricted  to the removal of an executrix as it transcends that and seeks consequential relief only obtainable from this court.

He also accused the Master of being complicit in the untoward activities complained of and that in any event the law does not state that s 117 applies to the exclusion of other laws. This was however not an explanation as to why applicant had not approached the Master first in terms of the Act. The allegations made against the Master are not captured in the founding affidavit and so cannot be said to be good cause for approaching this court at first instance. It is trite that an application stands or falls on the founding affidavit.

( Austerlands (Pvt) Ltd v Trade & Investment Bank Ltd & Others 2006 (1)ZLR372 (S) and Muchini v Adams 2013(1)ZLR 67(S))

The consequential relief applicant’s counsel alluded to was misplaced. In terms of the final order sought the applicants sought the removal of the executrix and consequently the appointment of another executrix which aspects are within the jurisdiction of the Master. It is thus not true that such relief is only obtainable by a direct approach to court as at first instance.

The assertion that fifth respondent has been complicit is an afterthought as fifth respondent was never approached with a request for the removal of the executrix. No basis was laid for such an allegation at all.

I am thus of the view that whilst a litigant as beneficiary may approach this court under common law for the removal of an executrix, where grounds for seeking such removal fall within ambit of  s 117, he must first exhaust the domestic remedies provided.

On that point I find that the application for removal of the executrix must fail.

2.  The next issue for determination is whether the declaratur sought has any basis at law.

The applicant sought to have declared null and void, and of no force and effect, all prospective sales and sales of assets that belonged to companies in which the deceased was a shareholder, made without the consent of the fifth respondent. Applicant’s argument in this regard was to the effect that the executrix ought to have obtained the fifth respondent’s consent in terms of s 120 of the Administration of Estates Act before selling any of the assets in the outlined categories.

Section 120 of the said Act provides that:

“If, after due inquiry, the Master is of opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate otherwise than by public auction he may, if the will of the deceased contains no provisions to the contrary, grant the necessary authority to the executor so to act.”

It is clear from that section that the assets to which fifth respondent’s consent is required are the assets or properties belonging to the estate of the deceased. There is thus no issue as regards personal assets but the contentious issue is whether assets belonging to a company in which the deceased held shares are part of the deceased’s estate.

The applicant’s argument was to the effect that such assets must be considered as deceased’s assets and so 5th respondent’s consent was required. The respondent contended otherwise.

It is trite law that a company is a separate legal entity, which conducts its own affairs separately from its shareholders. The case of Salomon v Salomon &Co. Ltd [1897] A C 22 (HL) long established the legal fiction of the corporate veil, which enunciates that a company has a legal personality separate and independent from the identity of its shareholders. In that regard, any rights, obligations or liabilities of a company are discrete from those of its shareholders, where the latter are responsible only to the extent of their capital contributions, known as ‘limited liability’.

Accordingly, a company can own property, execute contracts, raise debt, make investments and assume other rights and obligations, independent of its members.

Section 9 of the Companies Act, [Chapter 24:03], states that:-

“A company shall have the capacity and powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.”

In casu, the companies that included TECS Haulage (Private) Limited and Artman (Private) Limited are separate juristic entities capable of performing their own juristic acts. These companies are empowered by their respective Memoranda of Association to own property, and also to dispose that property. As separate juristic entities the companies can deal with their assets as they deem fit.

The deceased’s interest as a shareholder extended only to the shares that the deceased had in those companies. It is thus only where the sale pertains to the sale of the deceased’s shares in the companies that the fifth respondent’s consent would be required.

Thus if applicant is to succeed she must show that the sale pertained to the shares deceased held in the companies and not just that it pertained to assets owned by companies in which deceased held shares.

It is in this regard that applicant alluded to the fact that as the deceased held 100% shares in Artman (Private) Limited, the sale of the sole immovable property owned by this entity required the fifth respondent’s consent.

The first respondent contended that the initial sale was of the property owned by Artman (Private) Limited and not the shares and that subsequent to the grant of the provisional order such sale was aborted. Another sale after obtaining the requisite consent was conducted with applicant’s consent. This second sale was now for the shares held by the deceased in Artman (Pvt) Ltd. In the circumstances such sale can no longer be impugned.

As regards the sale of haulage trucks belonging to TECS Haulage (Private) Limited, it was upon applicant to show that these trucks were owned by deceased and not by the company. This she failed to do. As already alluded to above a company is at liberty to deal with its property as it deems fit. The interests of a shareholder attaches to his shares only.

In casu, the directors of TECS (private) Limited arrived at a decision to sell the trucks in consideration of what they deemed to be the best interests of the company. As the assets sold did not constitute personal assets of the deceased, there was no basis at law to seek the consent of the Master in terms of s 120 of the Act.

I am of the view that s 120 of the Act does not apply to assets which belong to a company. Therefore the declaratur, staying the sale of TECS Haulage (Private) Limited’s trucks, has no basis at law and cannot be granted.

The fifth respondent confirmed as much when in his report he alluded to the fact that as the assets were company assets there was no requirement for the Master’s consent.

From the above discourse the question to pause is whether the applicant has fulfilled the requirements of a final interdict and a mandamus.

The applicant sought to stop what was then the impending sale of an immovable property belonging to Artman (Private Ltd in which the deceased held all the shares. She also sought to prohibit any further sales of assets that belong to the companies in which the deceased had an interest, without the consent of fifth respondent. I am of the firm view that applicant has failed to establish the requirements for such an interdict. In the ZESA staff Pension fund v Mushambadzi 2002 (2) ZLR 205(S) at 207G-H ZIYAMBI JA outlined the requirements for a final interdict as follows:-

(1)	a clear right which must be established on a balance of probabilities,

(2)	irreparable injury actually committed or reasonably apprehended.

(3)	the absence of a similar protection by any other remedy.

The Applicant has a duty to satisfy all the requirements for an interdict, not some of them.  It is the totality of all the three requirements that would win the Applicant an interdict in this court.  Therefore, even if Applicant does satisfy two out of the three requirements for a final interdict she would not be granted the interdict.  This clearly means that the Applicant would have failed to show or prove before this court on a balance of probabilities that he is entitled to the relief of a final interdict. Veld Cliff Engineering(Pvt) Ltd t/a Firematic Consulting Engineers v Firematic Consulting Engineers (Pvt)Ltd HB 20/14.)

In casu, the applicant has not established on a balance of probabilities that she has a clear right over the assets of the companies in which deceased was a shareholder. It is pertinent to note that  the respondents have not said that  applicant is not entitled to benefit from the estate late Basheer; their contention was that she cannot by virtue of such right interdict companies in which the deceased was a shareholder from conducting transactions which are well within their powers. A beneficiary to the estate of a former member of a company is not empowered to grind the operations of the company to a halt or to interfere in that company’s operations or business transactions. If that were to be allowed one shudders to think of a scenario where companies are interdicted from operating at the death of any one of their shareholders unless they obtained the Masters consent to transact. Such would make a mockery of the principle of corporate veil. A beneficiary’s rights must surely be limited to the shares which form part of the deceased’s estate.

The applicant has also not shown the actual or reasonably apprehended harm she would suffer if the companies were to proceed in the normal course of their business without the interdict.

As regards alternative remedy, applicant has not shown that there is no other remedy to the protection of her interests as a beneficiary in the shares held by the deceased in the companies other than this interdict.

Clearly applicant was simply intent on using court process to perpetuate what seems to be a family misunderstanding over the death of her father and the manner of handling the estate as a result of which she wished assets of the companies to be treated as personal assets of the deceased. I am of the opinion that such a stance is untenable.

The respondents asked for costs on the legal practitioner and client scale. It is my view that such costs are only justified in the case of the fourth respondent as applicant unnecessarily dragged it to court when she had no basis for doing so. Had she done her basic homework she would easily have realised that 4th respondent had just been engaged by first respondent for the purposes of assisting in updating accounts of the companies in which deceased was a shareholder. She would have noted that fourth respondent was not a custodian of financial records and documents of companies in which the deceased was a shareholder. It may also be noted that despite citing fourth respondent, she sought no relief against fourth respondent. Despite fourth respondent’s protestation against the citation, applicant persisted hence she must be penalised with costs on the legal practitioner and client scale.

As regards costs for first to third respondents I am of the view that no case was made for an order of costs on a higher scale. This is a matter in which close family members have had misunderstanding that needed this court’s intervention to make it clear that assets owned by companies are not assets of the deceased. This pronouncement should therefore lead to a speed winding up of the estate.

Accordingly it is hereby ordered that:

The provisional order granted on 6 April 2017 be and is hereby discharged;

The applicant shall pay the 4th respondent’s costs on a legal practitioner and client scale.

The Applicant shall pay 1st , 2nd and 3rd respondents’ costs  on the ordinary scale

Dururu & Associates, applicant’s legal practitioners

Costa & Madzonga, 1st and 4th respondents’ legal practitioners

Chitewe Law Practice, 2nd and 3rd respondents’ legal practitioners