Emmah Sibanda v R. Antonio N.O and Wilfred Mafuka N.O and Noel Dube N.O and Abigirl Ndlovu and The Master of the High Court N.O

### Preamble
1
HB 242/22
HC 1491/21
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EMMAH SIBANDA

Versus

R. ANTONIO N.O

And

WILFRED MAFUKA N.O

And

NOEL DUBE N.O

And

ABIGIRL NDLOVU

And

THE MASTER OF THE HIGH COURT N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 21 AND 29 SEPTEMBER 2022

Opposed Application

T. Tavengwa, for the applicant

Mrs S. Drau, for the 4th respondent

MAKONESE J: 	This is an application for a declaratur in terms of section 14 of the High Court Act (Chapter 7:06).  The order sought by the applicant in the Draft Order as amended is in the following terms:

“IT IS ORDERED THAT

1.	The appointment of the 2nd respondent by the 3rd respondent be and is hereby declared null and void and accordingly set aside.

2.	All actions taken by the 2nd respondent as a purported Executor be and are hereby declared null and void and accordingly set aside.

3.	Costs of suit.”

The application is opposed.  The 4th respondent filed opposing papers and Heads of Argument.  In the exercise of the court’s discretion and due to the importance of the matter I  granted an application  for condonation for the late filing of applicant’s Heads of Argument.

Background Facts

This is not the first application to be filed by the applicant in this court.  In case No. HC 2372/19, applicant filed a court application on 7th October 2019.  In that matter applicant sought against the same respondents, essentially the same relief couched in the following terms:

“1.	The decision to sell stand number 5959 Luveve, Bulawayo to the 3rd respondent, be and is hereby set aside.

2.	The confirmation of the Final Distribution Account under DRB 611/17 be and is hereby set aside.

3.	The 4th respondent be and is hereby ordered to re-open the estate of the Late Samuel Dube DRB 611/17 and draw up a new inheritance plan.

4.	That there be no order as to costs.”

I observe here that a perusal of the papers in case No. HC 2372/19 reveals that this matter is based on the same facts as the present application.  The subject matter is the same.  The relief sought is strikingly similar.  In that matter this court dismissed the claim for want of  prosecution under case number HC 1357/21 on the 4th of October 2021.  This issue was not raised by the 4th respondent.  If the point had been adequately canvassed the court may very well have found this matter to be res judicata.  It would not be proper for me to make a finding on that aspect as the parties did not have the benefit to make submissions on it.  The sequence of events leading to this application is that the Late Samuel Dube died at Bulawayo on the 13th of October 2014.  Letters of Administration were issued in favour of Noel Dube (brother to the deceased) on the 27th of November 2017 under DRB Number 611/17.  On 22nd May 2018 Noel Dube (3rd respondent) executed a Special Power of Attorney in favour of Wilfred Mafuka (2nd respondent) granting him the authority to be his agent.  On 26th September 2018 the 5th respondent issued a certificate in terms of section 120 of the Administration of Estates Act (Chapter 6:01) authorising the Executor Dative to dispose by public auction, the immovable property known as stand 5959 Luveve Township, Bulawayo.  In pursuance of the Certificate of Authority to sell this immovable property, an agreement of sale was concluded between the 2nd respondent and 4th respondent on 8th October 2018.  Under case number HC 3375/18, this court ordered that the property in question be transferred to the applicant.  The order remains extant to this day and has not been set aside.  On the 2nd of August 2019, 4th   respondent who is an innocent purchaser of the property entered into an agreement of sale with the City of Bulawayo.  Applicant was served with summons for eviction and reacted by filing several suits in this court.  When all the applications were dismissed applicant resorted to filing this application as an application for a declaratur.  In a report dated 24th April 2019, the Master of the High Court (5th respondent) points out that according to the records filed in the estate file the consent for the sale of the property was done in accordance with the rules.  The authority to sale was never revoked or set aside.  The Executor Dative was entitled to sell the property.  This was done in accordance with the law.   4th respondent paid USD $20 000 as the full purchase price for the property way back in October 2018. 4th respondent has been prevented from taking occupation by the applicant.  Applicant has used every trick in the book to block the 4th respondent from taking occupation.

ISSUES FOR DETERMINATION

1.	Whether the 4th respondent was an innocent purchaser of house number 5959 Luveve, Bulawayo.

2.	Whether the estate of the Late Samuel Dube was administered in terms of the law.

3.	Whether the applicant is entitled to a declaratur in terms of section 14 of the High Court Act.

Whether the 4th respondent was an innocent purchaser of house 5959 Luveve, Bulawayo

In her application for a declaratur the applicant has argued that the sale of stand 5959 Luveve, Bulawayo was illegal for the reason that 3rd respondent passed a Power of Attorney and “ceded” executorship to the 2nd respondent.  4th respondent argues that the delegation of the duties of the executorship is not prohibited at law.  See: Shata and Another v Manase N.O & Anor HH 44/03 and Goredema v Magwenzi & Ors HH 223-10.

What the law prohibits is abdication of duty by the executor.  Delegation of duties by an Executor does not amount to abdication.  In the Shata case, KAMOCHA J state that:

“In my view an Executor can authorize some other person to carry out some or all of his functions on his behalf.”

In Bramwell & Lazar N.N.O. v Lamb 1978 (1) SA 380 at page 383 H, the learned Judge remarked that:

“It is common practice, and a convenient one for an Executor to authorize his co-executor or some other person to carry out some or all of his functions on his behalf.”

It is pertinent to note that once Letters of Administration are issued by the Master these are valid until set aside by an order of the court or withdrawn by the Master.  Similarly, where a consent is issued in terms of section 120 of the Administration of Estates Act, authorizing the Executor Dative to dispose of immovable property, such consent cannot be rendered ineffectual by the mere-say so of an individual.  Such consent can only be set aside by an order of the court or withdrawn by the Master where good cause is shown.  In this mater all the procedural steps concerning the sale of the immovable property were complied with.  The 4th respondent is an innocent purchaser who has been deprived of the use and enjoyment of the property since 2018.  It can safely be said that from a history of this case as outlined in this judgment, applicant has abused and continues to abuse court process.

Whether the Estate of the Late Samuel Dube was administered in terms of the law

In her founding affidavit applicant concedes that upon the death of Samuel Dube 3rd respondent was lawfully appointed Executor Dative of the Estate on 27th November 2017.  5th respondent proceeded to wind up the estate in terms of the law.  The applicant did not object to all the processes undertaken by 5th respondent until the sale of house number 5959 Luveve, Bulawayo.  As indicated earlier in this judgment, applicant issued process under case number HC 2372/19 seeking to set aside the decision to sell the immovable property.  In that matter applicant also sought the setting aside of the Final Distribution Account.  Applicant further prayed for an order to have the estate re-opened.  That application was dismissed for want of prosecution by this court on the 4th of October 2021.  Applicant did not seek to prosecute that application and abandoned the proceedings.  Applicant only sprang into action on 13th October 2021 by filing the present application for a declaratur.  The application was triggered by 4th respondent’s desire to evict applicant from the property.  I conclude that the Estate of the Late Samuel Dube was administered in terms of the law.

Whether the applicant is entitled to a declaratur in terms of section 14 of the High Court’s Act

Section 14 of the High Court provides as follows:

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

In RF Footwear Manufacturers (Pvt) Ltd v Boka Booksales (Pvt) Ltd 1986 (2) ZLR 209 (C) SANDURA JP (as he then was) was required to issue a declaratory order involving the rights of a lessor to evict a tenant at a future date.  After making reference to section 14 of the High Court Act, the learned Judge set out two considerations that he had to take into account in determining whether to issue the declaratur.  These were whether the applicant was an interested person in an existing future or contingent right or obligation, and secondly, whether the case was a proper one for him to exercise his discretion.  The learned Judge came to the conclusion that the matter before him was not a proper one for him to exercise his discretion as at the time of the hearing of the matter there was no good and sufficient cause for requiring the order.

The considerations that a court has to take into account before issuing a declaratur were   expanded and explained in Family Benefit Friendly Society v Commissioner For Inland Revenue & Anor 1995 (4) SA 120 (T) where in six comprehensive paragraphs VAN DIKHORST J sets out the legal principles applicable when a declaratory is sought and the mental steps that a court must follow in determining whether to issue a declarator.  The applicant or plaintiff must show that:

it is an interested person

there is a right or obligation which becomes the object of the inquiry

it is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter.

There must be interested persons upon which the declaration will be binding.

Considerations of public policy favour the issuance of the declaratory order.

NICHOLAS J in Electrical Contractors Association (South Africa) and Anor v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T) at page 519 stated:

“A person seeking a declaration of rights must set forth his contention as to what the alleged right is.”

What is required to be contended is a legal right and not the factual basis upon which a right may then be founded.

In submissions filed by the applicant in the founding affidavit and Heads of Arguments no reference is made to the section 14 of the High Court Act and its applicability to the relief sought.  Reference to section 14 of the Act is only made on the cover of the application.  In the Founding Affidavit applicant makes allegations that the 2nd respondent was appointed the Executor Dative without her knowledge and consent.  The Letters of Administration were issued on 27th November 2017.  Applicant never brought an application challenging the authority of the Executor.  The consent to sell the immovable property was granted on 25th September 2018.  Applicant did not take positive steps to have the consent to sell the property set aside.  The 4th respondent purchased the property in October 2018.  The sale of the property was never challenged until October 2019 when a court application was filed under case number HC 2372/19.  That application was not pursued and was eventually dismissed for want of prosecution on 4th October 2021.  Almost one year later, the applicant chose to file this application for a declaratur.  The requirements for a declaratur have not been addressed or established.

I am satisfied that this application has no merit.  It is an abuse of court process.

In the result, the following order is made:

1.	The application be and is hereby dismissed.

2.	Applicant is ordered to pay the costs of suit.

Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners

Messrs Pundu and Company, 4th respondent’s legal practitioners