Victoria Matunga and Ever Matunga versus Munemo Munemo and Biggy Munemo and Munyaradzi Munemo and Master of the High Court

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VICTORIA MATUNGA
and
EVER MATUNGA
versus
MUNEMO MUNEMO
and
BIGGY MUNEMO
and
MUNYARADZI MUNEMO
and
MASTER OF THE HIGH COURT



HIGH COURT OF ZIMBABWE
MATANDA-MOYO J
HARARE, 28 February 2018 and 14 March 2018


Opposed Application


B Maruva, for the applicants
D Matawu, for the 1st, 2nd and 3rd respondents


          MATANDA-MOYO J: The applicants applied for the nullification of a will of their
late father that they purported was a forged one. In the will, the deceased, John Munemo
Matunga bequeathed his entire estate to the first, second and third respondents who are his
grandchildren. The applicants alleged that the signature(s) on the will differed from that on a
cession agreement that was signed by the deceased in 1982.
          The first, second and third respondents on the other hand averred that the will was
indeed valid and expressed the wishes of the testator. They also raised a point in limine that
the issue of signatures raised a material dispute of facts and could not be decided on the
papers.
          A reading of the documents filed of record reveals that the first respondent was
appointed as executor to the estate of the late John Munemo Matunga on 14 September 2012.
This was after the death of one Fungai Tawodzera who had been appointed as executor
testamentary in the disputed will. The first respondent is also named as a beneficiary in the
disputed will. In her founding affidavit, the first applicant referred to the first respondent as
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Munemo Munemo (also known as Lovemore Munemo). She did not refer to the first
applicant as also being the executor of the estate of the late John Munemo Matunga. It is trite
law that an executor must be made a party to any action brought by, for or against a deceased
estate- See Klepman v Law Union and Rock Insurance. 1 In Nyandoro and Anor v Nyandoro
and others, 2KUDYA J stated that in our law, in terms of s 25 of the Administration of Estates
Act [Chapter 6:01] a deceased estate must be represented by an executor or executrix duly
appointed and issued with letters of administration by the Master of the High Court.
Therefore the failure by the first and second applicants to cite the executor of the estate of the
late John Munemo Matunga is fatal to the application.
          Assuming that the first and second applicants had properly cited the executor, their
application would also still fail on the point in limine raised by the first, second and third
respondents. Although to the naked eye, the signatures on the 1982 cession document and
those in the will look different, it is not the duty of the court to make a determination on this
factor without the benefit of expert evidence. In Gunda and Anor v Gunda and Anor, 3the
Supreme Court took cognisance of the fact that the High Court had reached a conclusion that
the purported signature of the testator was not genuine and that this was the conclusion
reached by the handwriting expert. In Manolakasis v Estate Late Dr John J. Manolakakis and
Ors, 4 MAKONESE J made reference to s 18 of the Civil Evidence Act [Chapter 8:01] which
provides as follows:

          “Comparison of any disputed handwriting with any handwriting proved to be genuine may be
          made by any witness, and such writings and evidence of any witness with respect to them
          may be adduced to prove the genuineness or otherwise of the handwriting in dispute .”
          In declaring the will null and void, it is pertinent to note that the court relied on the
evidence of handwriting experts. The court also relied on the evidence related to the
circumstances surrounding the writing and discovery of the will.

The importance of having the evidence of an expert was aptly captured in Naude and Ors v
Naude and Anor, 5as follows,

1
    1957(1) SA 506.
2
    HH-89-08
3
    SC 39/05
4
    HB-105-14
5
    High Court of South Africa ( Eastern Cape Division) Case no. 4349/14
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         “Ms. Palm stated that handwriting is based on two principles, namely habituation and
         individualisation of writing. As explained by her, people are creatures of habit and
         handwriting is a collection of those habits………Every person has a unique set of habits
         which they produce within their writing and which sets them apart from any other person.
         Handwriting, however is not static but dynamic and a person’s habituation changes over a
         period of time.”
         Time and again the courts have warned legal practitioners not to bring to court cases
on motion well knowing that there is a material dispute of facts which was aptly defined by
MAKARAU J (as she then was) in Supa Plant Investment (pvt) Ltd v Chidavaenzi6 as follows:

         “A material dispute of fact arises when such material facts put by the applicant are disputed
         and traversed by the respondent in such a manner as to leave the court with no ready answer
         to the dispute between the parties in the absence of further evidence .”
         In the present circumstances, it is not possible for the court to make a definitive
finding on whether or not the signature(s) on the disputed will are genuine or forged without
expert evidence. That issue therefore constitutes a material dispute of fact as does the issues
relating to the circumstances surrounding the making of the will and its production to the
fourth respondent.
         In passing, I wish to comment on the acceptance of a will by the Master of the High
Court. The stamp from the Master’s Office which has the words, “accepted” may have led to
the mistaken belief that acceptance of a will means that the will is valid. Section 11 of the
Wills Act [Chapter 6:06] states that every deed being or purporting to be a will, codicil or
other testamentary instrument must be registered with the Master or Assistant Master who is
duly authorised to open the documents. The registration of the will is mere evidence that a
will or document purporting to be a will has been registered. This means that if a will meets
all the formalities of writing, signing and attestation, the Master has no choice but to register
it for purposes of administration of the testator’s estate. If the validity of the will is
challenged, the Master or Assistant Master has no authority to decide on the validity or legal
effect. This is expressly provided in the proviso to s 11 which reads as follows:
         “Provided that- Notwithstanding any such registration, all questions as to the validity and
         legal effect of every such deed shall be reserved and remain for the decision of the court .”
Perhaps the time has come for the Master to change the stamp so that it indicates that the will
has been registered on a specified date rather than indicate that it has been accepted.
         The Master has authority in terms of s 8(5) of the Wills Act to determine whether or
not a document that does not meet all the formalities, should be registered as a last will and
6
    HH-92-09
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testament for purposes of the administration of an estate of the person who made the
document. Any person who is aggrieved by the Master’s decision to accept the document as a
last will and testament may approach the courts for relief.
   Accordingly it is ordered that.

   1. The application be and is hereby dismissed.

   2. The 1st and 2nd applicants shall pay the costs.




   Zuze Law Chambers, 1st and 2nd applicants’ legal practitioners
   Coghlan, Welsh and Guest, 1st, 2nd and 3rd respondents’ legal practitioners