Iphithule Miliswa Mathiya v The Master of the High Court & 3 Ors

### Preamble
1
HB 248/22
HC 27/21
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IPHITHULE MILISWA MATHIYA

Versus

THE MASTER OF THE HIGH COURT

And

LOMANGWE NDIWENI

And

ANDERSON EXECUTOR & TRUST (PVT) LTD

And

JULIAN NCUBE N.O.

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 8 JULY & 29 SEPTEMBER 2022

Opposed Application

J. Tshuma for the applicant

Advocate P. Dube for the 2nd respondent

No appearance for 1st, 3rd & 4th respondents

MOYO J:	This is an application brought to this court in terms of section 4 (1) of the Administrative Justice Act Chapter 10:28.  It is an application to set aside the determination by the Master of the High Court (herein cited as 1st respondent), wherein on 8th of August 2019, she declared the last Will and Testament of the Late Tulli Ndlovu Mathiya as void due to a subsequent customary law union that he contracted with the 2nd respondent, namely Lomangwe Ndiweni.

What brings the application to this court is that the Master declared the Will of the late Tulli Ndlovu Mathiya null and void on the basis that he executed the Will prior to his customary law union to the 2nd respondent and that consequently his marriage to the 2nd respondent invalidated the Will in terms of section 16 of the Wills Act Chapter 6:06.

At the hearing of the application 2nd respondent raised 3 points in limine.

That applicant is not properly before the court in that the application is not made within the ambit of the High Court Rules in that it failed to comply with Rule 257 of Order 53 of the High Court Rules 1971.  Applicant contends that they have not flouted any rules as they have come to court in terms of section 4 (1) of the Administrative Justice Act (supra).  It occurs to my mind that one should be able to bring an application for review in terms of Order 33 Rule 257 for matters that fall within the ambit of that rule.  As correctly argued by applicant’s counsel against this point in limine, the Supreme Court settled this issue in the case of Arafas Mtausi Gwaradzimba N.O. vs Gurta A. G. SC-10-15 where GWAUNZA JA (as she then was), upheld a High Court finding that an application brought in terms of section 4 (1) of the Administrative Justice Act need not follow the provisions of Order 33 of the High Court Rules as there is no specific format prescribed in the Act as long as it meets the requirements of  the subsection.  This point in limine is accordingly dismissed for lack of merit.

The doctrine of peremption

2nd respondent’s counsel argued that applicant through her conduct before the Master accepted or acquiesced to the decision of 1st respondent appointing 2nd respondent as a co-executor against the provisions of the Will and therefore should be prevented from challenging 1st respondent’s actions.  However, as clearly pointed out by the applicant’s counsel, there is nowhere in the papers before this court to show that applicant unequivocally abandoned their rights.  In the absence of express actions by the applicant who was not legally represented at the time, per her founding affidavit, I am not persuaded that the waiver of rights can be taken as a matter of inference.  The waiver of rights can only be taken expressly and not by assumption.  I do not hold the view that applicant’s conduct in accepting the appointment of 2nd respondent as co-executor can be taken to mean an unequivocal waiver of her rights.  I accordingly dismiss this point in limine.

The material non-disclosure

In that applicant did not divulge other court processes before this court that is HC 973/20 wherein 2nd respondent seeks an order that stand number 5 Circular Drive be declared as the matrimonial home of the parties and consequently that she is supposed to inherit it as the surviving spouse.  2nd respondent argues that the matters are related and therefore applicant had a duty to disclose same.  Applicant contends that the other matter is not material to the determination of this one.  In this matter, the applicant has approached the court in terms of section 4 (1) of the Administrative Justice Act and yet in HC 973/20, the 2nd respondent seeks an order for personal maintenance (clause 1 of Annexure R1) and a declaration that house number 5 Circular Drive, Burnside was the matrimonial home (clause 2 of Annexure R1).  In this application, applicant is aggrieved by the Master’s actions in setting aside a Will and declaring it invalid.  I hold the view that the 2 matters can be dealt with separately with no prejudice to the other side.

I accordingly find that there is no material non-disclosure.  It is my considered view that it is not any non-disclosure that matters, but, the non-disclosure must be material to the dispute at hand.  It must also be discerned from the papers that the non-disclosure was a deliberate ploy, to shortchange the other party and mislead the court.  There must be an inference that can be drawn as to the intention to deceive the court by failing to disclose material facts.  I am not convinced that such is the case herein.  I accordingly dismiss the point in limine.  I then proceed to deal with the merits of this case.

This dispute centers on the Master’s power vis-à-vis declaring a Will null and void.  In terms of the proviso (1) in section 11 of the Administration of Estates Act Chapter 6:01, all questions relating to the validity of and the legal effect of every such deed (will) shall be reserved for the decision of the High Court.

Clearly, the Master does not have the power to declare a Will valid or otherwise.  The Master can simply accept and register a Will, but cannot delve into the validity or otherwise of same.  Whilst the Wills Act does not specifically prohibit the Master from declaring a Will valid or otherwise, it is important to note that it refers to an appropriate court as the High Court or a Magistrates’ Court, where such court has jurisdiction to determine any question relating to the validity, interpretation or effect of the Will concerned.  Section 2 (a – b).  Clearly, any question relating to the validity, interpretation or effect of a Will is not within the Master’s powers as the Master is not defined as an appropriate court.  It therefore follows that the Master cannot exercise powers that the Wills Act clearly give to an appropriate court especially considering that section (5) of the Administration of Estates Act specifically takes away such power from the Master.  I accordingly hold the view that the Master’s actions in declaring the Will invalid are ultra vires the Master’s powers and cannot be allowed to stand.  The Master cannot exercise powers that she does not have.  Paragraph (b) of the draft order however needs to be amended as I cannot order that the Master winds up the estate in accordance with the Will whose validity and effect can only be determined by a competent court on approach by either party.  I have accordingly amended the order sought in clause (b) of the draft order.

It is for these reasons that I will grant the order sought in terms of the draft as amended.

Messrs Webb, Low & Barry, applicant’s legal practitioners

Lazarus & Sarif, 2nd respondent’s legal practitioners