Shennaz Wazir v Master of High Court and Osman Dudhia (In his capacity as Executor Testamentary for the Estate of Late Amina Hassam Kassam) and Shiraaj Kassam and Naushad Hassam Kassam

### Preamble
1
HH 586-25
HCHF 1403/25
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SHENNAZ WAZIR

versus

MASTER OF HIGH COURT

and

OSMAN DUDHIA (In his capacity as Executor Testamentary for the Estate of Late Amina Hassam Kassam)

and

SHIRAAJ KASSAM

and

NAUSHAD HASSAM KASSAM

HIGH COURT OF ZIMBABWE

MAXWELL J

Harare, 14 JULY 2025

OPPOSED – DECLARATUR

E R Samkange, for the applicant

T LMapuranga for the second to fourth respondents

No appearance for the first respondent

MAXWELL J: Applicant approached the court seeking the nullification of the appointment of the second respondent as Executor Testamentary. Consequently she sought the cancellation of the letters of Administration appointing second respondent as Executor Testamentary and removal of second Respondent from the Estate late Amina Hassam Kassam. Applicant also prayed for the appointment of an independent Executor and costs of suit on an attorney and client scale.

In her founding affidavit Applicant stated that she is the only daughter to the late Amina Hassam Kassam. Her mother died on 6/11/2020. On 12/2/25 second Respondent was appointed as an executor Testamentary to her late mother’s estate on the strength of her mother’s will. Her father passed away on 24/7/1998. She averred that the will envisaged the role of Executor to be jointly discharged by her father and the second respondent. As there was no unanimous consent from all the beneficiaries for second respondent to be appointed as Executor she prayed that the appointment be declared invalid. Applicant pointed out that second Respondent is permanently resident in the United Kingdom and only visits Harare as and when he decides to do so.

Applicant further submitted that second respondent prepared a skewed inventory for the Estate ignoring the agreed family position. She stated that second respondent is not in a position to fairly and impartially discharge the role of an Executor of her late mothers Estate. In her view second Respondent was appointed as Executor because information was withheld from the first Respondent and she was excluded from the Executor appointment proceedings. She prayed for the removal of the second Respondent and for the appointment of an independent executor.

Second to fourth Respondents opposed the application. In his opposing affidavit second respondent raised points in limine. The first one was to the effect that there was improper service as leave of the court was not obtained before service was effected on him and on fourth Respondent in the United Kingdom contrary to Rule 17(1) of SI 202/2021. The second point in limine was that Applicant committed material non-disclosure as she deliberately did not disclose the first Respondent’s response to their first letter of objection to his appointment as the Executor Testamentary in the Estate Late Amina Hassan Kassam. He submitted that the first Respondent’s response addressed all the issues raised in the present application. The third point in limine was that the application was defective as it sought a declaratory order rather than a review. The last point in limine challenged the relief sought on two bases, firstly that there is an unintelligible statement which fails to identify the legal grounds upon which Applicant demands his removal as Executor of the late Amina Hassam Kassam’s estate. Secondly, Respondent pointed out that Applicant seems to be objecting to the validity of the deceased’s last Will and Testament which objection should have been raised in terms of the Wills Act [Chapter 6:06].

On the merits, second Respondent stated the Applicant is required to first obtain a High Court Order in terms of s30 of the Administration of Estates Act [Chapter 6:01] requiring first Respondent to revoke the letters of Administration. Further that Applicant did not state in which areas he has failed to perform his duties as an Executor. Second Respondent submitted that he invited the applicant to a meeting at the Master of the High Court’s offices on the morning on 12 February 2025 but she chose not to attend. Further that the deceased‘s intention to have him serve as the sole executor of her estate is reinforced by a Letter of Wishes dated 7 May 2020. Second Respondent pointed out that he has at his own cost and by way of a special Power of Attorney appointed a local agent to assist him in the day to day administration of the Estate as he is based in the United Kingdom. Second Respondent also stated that the Applicant and her brothers unlawfully distributed the estate of their late mother privately without any recourse to the master or the executor.

Second Respondent submitted that the Applicant’s objection to his appointment on the basis of his residency is not properly founded in law and is also redundant in view of the response from the Master. He prayed for the dismissal of the application with costs on the legal Practitioner and client scale.

Third and fourth respondents raised the same points in limine similar to those raised by second Respondent. They proffered the same basis for opposing the relief sough as that proffered by the second Respondent.

In their heads of argument second to fourth respondent persisted with only two preliminary points. I will consider the others as abandoned. I will therefore consider the points mentioned in the heads of argument.

That this is a review disguised as declaratur.

Second to third Respondent argued that the decision to appoint the second Respondent as executor was made by the first Respondent who is a public official and that the decision was made in accordance with the Testator’s will. Instead of hiding behind an application for a declaratur, the Applicant should have applied for review. Applicant’s stance is that an application for review would not have arisen in this matter as the appointment of the second Respondent cannot be valid as it is allegedly based on a Will which envisaged a joint executorship.

The record shows that on the 18th of March 2025, Applicant’s legal Practioners wrote to the first Respondent. Part of the letter reads

“We seek that your office enquire into the suitability of Mr Dudia to be the Executor and consider removing him from being an Executor of the Estate of the late Amina Hassam Kassam for various reasons which include the following reasons,

The will submitted to your esteemed office and relied upon to appoint Mr Dudhia envisaged a conjunctive appointment of Mr Osaman Dudhia and Mr Hassam Kassam as the executors. The Will did not appoint one Executor. The Will used the conjuctive words “Mr Hassam Kassam and Mr Osaman Dudhia to be appointed as Executors” One of the two passed on and the appointment of Mr Osaman Dudhia cannot be sorely based on the Will without more.

Our client who as a daughter to the deceased, objects to the appointment of Mr Osamam Dudhia and absent an agreement by all beneficiaries, Mr Dudhia ought not to take the role of Executor.

Mr Dudhia is permanently resident in the United Kingdom. He visits Harare as and when he decides to do so. The estate to be administered is in Harare. All issues arising out of the estate are in Harare. He is unfit, for this reason, to be the Executor.

Mr Dudhia took a position that he does not want to be involved in the affairs of the Hassam Kassam family. He was a trustee of the Hassam Kassam Family Trust until his resignation. His interest in the estate of the late Amina Hassam Kassam only arose after meeting with Mr Shiraaj Kassam which meeting was conducted to exclusively. The subject and content of that meeting was never disclosed to our client nor is it known. Mr Dudhia confirmed this position on the 20th of January 2025 via email.

Mr Dushia did not disclose to our client that there was to be an edict meeting seeking his appointment as an Executor on the 12th of February 2025. He deliberately withheld the information having organized with our client’s siblings to support his appointment. This conduct is testimony to his partiality on the matter.

As the time of his appointment, Mr Dudhi knew and or ought to have known that our client together with her siblings were involved in discussions in respect of how to wind up the estate of the late Amina Hassam Kassam and all ancillary issues. Unbeknown to our client, Mr Dudhia was brazenly unmoved by these discussions and proceeded to undermine their integrity by proceeding as he did on the Estate. This also testifies of Mr Dudhia’s bias.

Whilst known to Mr Dudhia and all the other siblings, the family took a position on the first of December 2020 and signed an agreement. The agreement is attached as Annexure “C”. The inventory prepared by Mr Dudhia ignores the family position but it is also testament to the fact that he has got an agenda with the estate of the late Amina Hassam Kassam. The agenda is known to him.

Against the above background, we request your esteemed office to proceed in terms of the provisions of section 116 of the Administration of Estates Act, [Chapter 6:02] and in the interest of the professional administration of the estate of the late Amina Hassam Kassam and remove Mr Osman Dudhia from the role of Executor .”

The letter was responded to on the 26th of March 2025. The first Respondent’s office stated that the Will was accepted for administration purposes in its entirely which is the basis of the appointment of the second Respondent. Further that there is no provision in the Will that disqualifies any of the appointed executors to proceed with administration in the event that the other dies. It was further pointed out that the meeting of 12 February 2024 (sic) was not an edict meeting but a special meeting to confirm the validity of the Will. The Master’s office stated that second Respondent’s domicilium and availability is not a primary cause for concern as he confirmed his availability and commitment to fulfilling his fiduciary duties. The Master‘s office concluded by stating that an inquiry in terms of s116 of the Administration of Estates Act [Chapter 6:01] is unwarranted at that stage as the executor had not commenced administration of the estate and there is no evidence of misconduct or neglect of his duties as yet to justify such intervention.

When one looks at the letter from Applicant’s legal Practioners dated 18 March 2025 and its response, juxtaposed to the present application, it is clear that applicant is aggrieved by the Master’s decisions firstly to appoint second Respondent as Executor and secondly the refusal to remove him as such. In my view Applicant ought to have sought a review of the Masters decision. Furthermore, the invalidation of an appointment and the challenge there to are issues to be dealt with on review. Applicant stated that she was seeking declaratory relief in terms of section 14 of the High court Act [Chapter 7:06].  The said section states,

“The High Court may, in its discretion at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

From the papers, applicant is not seeking any determination of any existing, future or contingent right or obligation. She is seeking a reversal of the decision of the first Respondent. I find merit in the first preliminary point. It therefore succeeds.

(2) Material non-disclosure.

Second to fourth Respondents submitted that Applicant did not disclose the fact that she had approached the first Respondent with her concerns and the first Respondent  had decided the issue against her. The Applicant stated that the response dated 26 March 2025 was never served on her legal practitioners of record. She challenged the third respondent to disprove the fact. In oral submissions Mr Mapuranga indicated that he disputed that Applicant did not see the response from first Respondent as communication was done with her legal practitioners. Applicant’s heads of argument are silent on this issue.

Indeed the Founding Affidavit is silent on the issue. Applicant did not disclose the fact that on 18 March 2025 her legal practitioners had written to the first Respondent raising concerns on third Respondent’s appointment. Even if it is true that she did not get a response from the first Respondent, it would be improper for her to proceed to approach this court on the same issues before getting the Respondent’s position on the issues. In the event that it is correct that she did not get a response, one would expect that she would seek that first Respondent be compelled to respond to her concerns raised by letter of 18 March 2025. The existence of the letter dated 26 March 2025 from first respondent’s office, makes it improper for the applicant to approach the court on the same issues. The failure to disclose the fact that first Respondent was approached on the same issues is a material non- disclosure. It goes to the core of the appropriate procedure to follow in approaching this court. I find merit in this point in limine as well.

I uphold both points in limine and make the following order.

The matter be and is hereby struck off the roll which costs.

MAXWELL J………………………………………….

Samkange Hungwe, Attorneys Applicant’s Legal Practitioners

Ahmed and Ziyambi, second to fourth Respondent’s Legal Practioners