Ido Mpofu and 3 Ors v Estate Late Joel Mpofu and 6 Ors

### Preamble
1
HB 256/20
HC 740/19
---------


IDO MPOFU

And

DENNIS MPOFU

And

SIBUSISIWE MPOFU

And

LOUISE MPOFU

Versus

ESTATE LATE JOEL MPOFU

And

EVELYN SIBONILE SIMELA

(in her capacity as Executrix Dative of the

Estate late Martin John Simela)

And

ELLAH NDABA

(in her capacity as Executrix Dative of

Estate late Thomas Ndaba DR NO. 1436/00)

And

ESTATE LATE PHILIP MPOFU

And

THE ASSISTANT MASTER OF THE HIGH COURT N.O.

And

THE REGISTRAR OF DEEDS N.O.

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 17 FEBRUARY 2020

Opposed Application

Ms S. Mwaurayeni with L Chimire for the applicants

Ms V. Chagonda for the 3rd respondent

1st, 2nd, 4th, 5th and 6th respondents in default

MABHIKWA J:	This matter came before me as an opposed matter.  I dismissed the application with costs and below are my reasons for the dismissal.

The first applicant contends that he is the son of the late Philip Mpofu.  The 2nd to 4th applicants are his siblings whom he says have granted him authority to act on their behalf.  Second applicant filed his own founding affidavit associating himself with the contents therein.  The 3rd and 4th applicants’ Powers of Attorney granted to 1st applicant are filed of record.

The fist respondent is the estate of the late Joel Mpofu who was his eldest brother at the same time being his late father’s eldest son.

It is the plaintiffs’ contention that according to the “surviving spouse” and the 5th respondent the estate was never registered.  It is not clear from the affidavit which estate, whether that of the late Philip or that of the late Joel.  Applicants also claim that according to the records, the estate was not finalised under unclear circumstances.  It is claimed also that the late martin John Simela “had been involved in the winding up of estate late Philip Mpofu and appears in records pertaining to the said estate.

The applicants also claim that the 2nd respondent was the administrator of Filabusi at the time the deceased was alive, most probably the now late Philip Mpofu.  They further say the 3rd respondent was also involved in winding up of the estate according to the records although his further and better particulars are unknown.  It is claimed that he improperly benefited from the estate by securing transfer of a certain farm without clear course for the transfer.  He was allegedly represented by Messrs Lazarus and Sariff hence the application is served on them as the last known address.

The fourth respondent is the estate of the applicants’ own father.  They claim that this estate was registered and administered between the years from 1987 to 1990.  The executor dative was at the time a legal practitioner called Lot Senda of Sansole and Senda Legal Practitioners.

It was the applicant’s claim that their father, the late Philip Mpofu married the late Jane Mpofu by civil rights in 1948.  After the death of Philip, the applicants’ eldest brother, the now also late Joel Mpofu was appointed heir to the estate by the then Presiding Officer Mr C. W. Nkomo.  He was issued with a certificate of heir.  It was alleged that on the same day the 4th day of February 1987, the deceased estate was registered with 6th respondent.  The registration forms and other documents were allegedly completed by Mr Lot Senda whose capacity was stated as that of an executor nominated by the relatives.  The applicants now dispute that allegation and deny any association at all with the said Lot Senda.

It is argued that the said Lot Senda was duly issued with letters of administration as the executor dative of the estate, perhaps of the late Philip, the applicants’ father.  I must say that there are so many people concerning the estate who became deceased, some having become executors of one estate or another.  It is alleged also that Lot Senda himself never carried out the duties of executor directly but rather through an agent, another lawyer one Jacobus Petrus Obeholzer, then with Messrs Sansole and Senda to whom he had granted Power of Attorney.

I must say at this stage that it is not clear where the applicants themselves were when these properties were dealt with for a period spanning for decades.  Throughout the application, the applicants were not sure or clear what transpired in a number of instances.  It was like they wanted those numerous questions answered in court.  They even state numerous matters that they were unclear of or where they assumed what could have happened.  For instance they were not clear as to why the farm known as the Fletcher Farm was not in the deceased’s name at the time of his death.  They were also not clear why the second one, Malole Farm was left out of the inventory despite being in deceased’s name according to them.  As already stated, it was puzzling how so many people most of whom have died could have dealt with the estate without applicants’ involvement at all.  They now claim that their late brother Joel, was either on a frolic of his own and or was misled.

The application itself was heard 33 years after the registration of one estate in 1987 and 34 years after the death of the applicants’ father.  It was also ten (10) full years after the death of their brother Joel who had been granted the certificate of heir by the Presiding officer Mr C. W. Nkomo 13 years earlier in 1987.  Apart from the late Joel Mpofu and the late Martin John Simela, there are other people mentioned who were allegedly extensively involved in the estate who are late or most likely late.  For instance, the late Thomas Ndaba had been cited by the applicants as the 3rd respondent.  Although the cover page was altered a few days before the hearing to reflect Ellah Ndaba representing the estate late Thomas Ndaba, the rest of the application, including paragraph 6 of the founding affidavit reflected Thomas Ndaba as a living male adult.  It was also unclear and it appeared possible that Evelyn Sibonile Simela whom the applicants claim was once appointed executrix dative of estate late Martin John Simela may be late.  The applicants state that her whereabouts and particulars are unknown and that according to the records she never finalised the said Martin John Simela’s estate “under unclear circumstances”.  It was also unclear and possible that the said Lot Senda, the Presiding Officer Mr C. W. Nkomo and others may be late.

The founding affidavit then claims that when all this “administration” took place for decades, the late Philip Mpofu was meanwhile survived by six (6) other children apart from the late Joel, whom they now claim to have been on a frolic of his own without their involvement.   Where were they and why, one would ask.

The applicants on their part claim in paragraph 28 of the founding affidavit that:

“Out of confusion of what had really happened to the estate of our late father, being majors we were just spread all over the country, girls were married and I finally went to the United Kingdom where I remained for almost fifteen years.  A closer look reveals that all was a one man’s crusade; it was Sansole and Senda throughout …”

And at page 30, the founding affidavit by 1st applicant again rather seem to brag that;

“…  Despite the issue of the heir in question then, still applicants retained the right to be informed of the administration of their father’s estate.  Due to lack of transperancy, the whole process was done through a tunnel of misrepresentation, fraud, undue influence and illegality.  The inheritance ought to have been preserved.  Had I been advised that the estate was burdened by genuine claims which the true heir could not settle, I could have offered to settle those liabilities and had the estate preserved.  …   Surely, I had the full capacity to purchase the farm or pay off those creditors.  By the time of the passing on of the deceased, I already owned number 71180 Lobengula West, Bulawayo.  In fact I was employed stably earning enough as an auto electrician.  Even if I could not, if that be presumed, which is disputed, my brother the 2nd applicant herein was employed as a fitter and Turner and my sister Sihle, who is not a party to these proceedings, as a teacher.” (underlining is mine)

In effect and in short, the applicants sought an order declaring that the administration of the estate late Philip Mpofu registered in 1987 under DRB 89/87 by the Executor Dative Lot Senda be declared invalid, nullified and set aside.  The applicants also sought an order that ‘a professional’ executor of the estate of the late Philip Mpofu be appointed “in terms of the law” and wind up same within six (6) months of the order applied for being granted.  The 1st, 2nd, 4th 5th and 6th respondents were in default.

The third respondent however, raised a number of preliminary issues which were pertinent.  She is the widow of the late Thomas Ndaba and Executrix Dative of his estate.  She confirms that the late Thomas Ndaba died some twenty (20) years ago on 7 August 2000.  Letters of administration were issued to her on 16 November 2000.

The 1st point in limine was that Thomas Ndaba, having died in August 2000 could not be sued in his personal capacity as applicant had done.  As already stated, above, although Ellan Ndaba was cleverly substituted before the hearing for Thomas Ndaba on the cover page, on the rest of the papers, the application, including paragraph 6 of the founding affidavit, Thomas Ndaba remains as cited earlier as if he was alive.  The 3rd respondent contended that the point in limine remained pertinent.

The second point in limine related to the citing and service of estates.  The 3rd respondent pointed out that 1st respondent was only cited as “Estate Late Joel Mpofu”.  4th respondent was only cited as “Estate late Philip Mpofu”.  No representatives were properly mentioned or cited as representing the deceased estates.  The court in fact noted that these were the applicants’ own late father and late eldest brother respectively.

Even in the case of Evelyn Sibonile Simela, who in the founding affidavit the applicants do not know whether she is dead or alive and whose particulars and address have not been shown, she was simply served by affixing the court application on a fenced gate at number 7 John Anthony Road, Waterford, Bulawayo.  Surprisingly, from the founding affidavit, all that the applicants know about the said Evelyn Sibonile Simela is what the records show when she became the executrix of the estate late Martin John Simela, some 25 years back in 1995.

On the 3rd point, the 3rd respondent contended that the property known as Lot 50 of Malole of Belingwe Block and situate in the District of Belingwe was sold to Thomas Ndaba by Philip Mpofu himself in 1982 during their lifetimes and well before they both died.  The property therefore has been in the hands, possession and occupation of Thomas Ndaba and his successors for a period well in excess of thirty (30 years), in fact 38 years to be precise.  In terms of what is known as “acquisitive prescription” alone, the applicants are barred from making a claim for that property.  In any event, upon the demise of the late Thomas Ndaba and the winding up of his estate, the said property was awarded to 3rd respondent as his surviving spouse and widow.  She too has continued possession and occupation of the same for about two decades.  The said property was then transferred to her name by Deed of Transfer number 3772/2004.  The property was therefore moved from the late Philip Mpofu to the late Thomas Ndaba and to Ellah Ndaba for the past 16 years in terms of registration.

On the 4th point in limine, the 3rd respondent raised the issue that the applicants had thirty days within which to challenge the estate accounts of their father in terms of the Administration of Estates Act which period had long lapsed some 30 years ago.  This court in fact notes that in terms of the Administration of Estates Act Chapter 6:01.  Section 6 states that the executor gives notice by advertisement that the account shall be so open to inspection in the Gazette and in a newspaper circulating in the district wherein the deceased resided or carried on his principal business.  The executor states in that notice the period during, and the place at which the account will be open for inspection.

Section 52 (9) is to the effect that thereafter, the Master shall consider such account, together with any objections that may have been lodged and shall give such directions thereon as he may deem fit.  Section 52 (1) states that:

“(1))	When an account has been open to inspection and no objection has been lodged, or if any objection has been lodged and has not been sustained or has been withdrawn, or the person objecting has not applied to the High Court within the time prescribed the executor shall proceed to pay out the creditors and heirs and shall lodge with the Master the ………….. in support of the account.”

It is section 52 (a) that states that any challenges or lodging of objections to the Master’s directive (s) by any aggrieved person shall be done within thirty (30) days after the date of the Master’s direction on the account.  The court notes that the applicant now want to impune the whole appointment of Joel Mpofu as heir to the estate and literally all that was done by Messrs Lot Senda and Jacobus P. Obeholzer, including the payment of creditors whom 1st applicant claims he would have easily paid off or pulled together resources and paid together with his other 6 siblings.  He also claims that his late brother failed to use the estate to cater for their late mother Jane and for them as children and beneficiaries of the estate. He claims that he is unaware of how, but that the appointment of the late Joel Mpofu was surrounded in mystery with involvement of non relatives.  Strangely however, the now late Jane Mpofu, mother of the applicants according to their own affidavit, was wife and widow to the late Philip Mpofu. She endorsed the said late Joel Mpofu as heir to the estate of the late Philip Mpofu.  Another Joel Mpofu, of No. 6300 Gwabalanda, Luveve, Bulawayo, a brother to the late Philip Mpofu also endorsed him.

The 5th point was that the application is clearly one for review, disguised as a Declaratur to escape the consequences of applicants’ failure to act timeously.  The 3rd respondent argued that the records show that the applicants are well aware that plot 50 of Malole Block of Belingwe had been sold during the lifetime of the now late Philip Mpofu.  The applicants cannot then seek proof of payment now, and  legally allege non-sale and non-payment when both Mpofu and Ndaba have long died. In fact, the Deed of transfer in favour of the late Thomas Ndaba shows that there was a sale and a consideration of $6 000,00.

In Matsinde vs Nyamukapa 2006 (2) ZLR 2000 @ 204 (H) MAKARAU J (as she then was), stated the following about complaints and removal of executors:

“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 retain the executor after complaints have been lodged with him is then brought on review to this court on the recognized 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.”

As already stated above, the application in casu is really about complaints against the executor or executors of estates most of whom are late and some are either late or possibly late.  The applicants now want the court to  grant a declaratory order effectively meant to re-open and dig what may or may not have happened to the estate of Philip Mpofu some more than 30 years ago by way of an application.  It is clear at pages 28 and 30 of the founding affidavit that the applicants seem to have been unconcerned with their father’s estate for decades.  They took a reckless, tardy and perhaps an uncarring attitude towards the estate and stayed away from it for decades but now want to paint a picture of fraud and other serious allegations in the process, against not only their own late brother Joel Mpofu but also against officers of the court like Messrs Lot Senda , Jacobus Obeholzer and the then Presiding Officer Mr C. W. Nkomo.

I would agree in fact with counsel for 3rd respondent that all this is done by way of application in the background of a very long narrative meant to obtain an order that would affect many people, dead and alive, corporal and incompareal for actions done over a period of over 3 decades.  The point that the court could note right from the onset and the parties themselves are agreed, is that because of the very nature of applicants’ claims, and the time taken to bring them, there are now very contentious issues and disputes of fact that cannot be decided on the papers.

Counsel for the applicants also conceded ultimately that the application was literally defective on the basis of other preliminary points like the failure to properly cite and serve deceased estates and their representatives.  There was also the failure to follow the provisions of the Administration of Estates Act, Chapter 6:01.

For those reasons alone which arise from the points in limine raised and even agreed to, the application should be dismissed.  In fact, just as MAKARAU J (as she then was) would have done in Matsinde vs Nyamukapa (supra), in casu I too would have gone on to dismiss this application even on the merits.

Accordingly, the application is dismissed with costs.

S. Makonyere Legal Practitioners c/o Liberty Mcijo & Associates, applicants’ legal practitioners

Calderwood Bryce Hendrie & Partners, 3rd respondent’s legal practitioners