Kudakwashe Shana & 5 Ors v Loveness Manala Motsi & 3 Ors

### Preamble
1
HB 257/20
HC 1845/17
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KUDAKWASHE SHANA

And

KUDZAI SHANA

And

KURAI SHANA

And

SPIWE SHANA

And

MASIMBA SHANA

And

JANET MADUME (nee SHANA)

Versus

LOVENESS MANALA MOTSI

And

THE MASTER OF THE HIGH COURT OF

ZIMBABWE N.O

And

THE ASSISTANT MASTER OF THE

HIGH COURT OF ZIMBABWE, BULAWAYO N.O

And

TSUNGIRIRAI IDZAI ANANNIA SHANA

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 6 JUNE 2020

Opposed Application

N Mazibuko, for the applicants

G Sengweni, for the 1st respondent

No appearance for 2nd, 3rd and 4th respondents

MABHIKWA J:	This matter came to me as an opposed application.  On 6 June 2018, I made the following order that;

1.	The 1st respondent be and is hereby removed as an executor in Estate Samson Shana, DRB 748/13.

2.	The 1st respondent be and is hereby ordered to return the Letters of Administration issued to her together with all work done to date.

3.	A different and neutral Executor/Executrix be appointed by the Master in consultation with counsel for both parties.

4.	There be no order for costs.

Below are my brief reasons for the order

The six (6) applicants are children of the late Samson Shana who died intestate on 8 December 2013.  He was survived by the 6 co-applicants and a widow, the 4th respondent. She apparently had no surviving children with the late Shana.  The 1st respondent was eventually appointed Executrix Dative of Estate late Samson Shana.

On 11 July 2017 the six applicants filed an application for the removal of the 1st respondent as Executrix Dative of the estate.  They argued that they, being natural children of the late Samson Shana and as beneficiaries of his estate had a litigitimate and substantial interest in the matter.  In their view, the 1st respondent had, by acts of commission or omission become unsuitable to act as Executor of the estate in that;

1.	She had committed an act of fraud and forgery in respect of the estate.  In this regard, they submitted that there was a family company known as Shanana Distributors (Pvt) Ltd.  The late Samson Shana held 50% of the issued share capital in the company.  After the death of the late Shana, Smolly Shana, the mother of the six children was co-opted as Director to satisfy statutory requirements.  1st respondent, when she became Executor, fraudulently changed the Directorship of the said company by altering C.R 14 at the Registrar of Companies’ office.  She removed the 1st applicant and Smolly Shana as directors and inserted herself and one Nicholas Mashiri as directors instead.  They attached the judgment of TAKUVA J in Kudakwashe Shana & 2 Ors v Manala Loveness Motsi (N.O) & 3 Ors HB 91-17 (HC 199/16).  In that case on the date of hearing, Mr Chikwakwa for the respondent, admitted that the 1st and 2nd respondents (Manala L Motsi and Nicholas Mashiri) could not lawfully assume directorship of the company (then 3rd respondent). That is plain in TAKUVA J’s judgement.  Chikwakwa agreed that the final order be granted as prayed for and amended.  Manala Motsi and Nicholas Mashiri were dully removed from the directorship of the company whilst Kudakwashe and Smolly Shana were re-instated.

2.	She had colluded with third parties to obtain for her and third parties, benefits that they were not entitled to.  In addition to Nichollas Mashiri mentioned above, 1st respondent allegedly connived with one Gerald Kawome who then laid claim to an estate property claiming to have bought it.  The claim was not accepted by the company and the applicants.  They caused the arrest of Gerald Kawome.  He was legally represented by a Mr Russel Dzete a lawyer.  1st respondent, who at the time had made herself director of the company surprisingly did not oppose Gerald’s claim.  The applicants had instituted another claim.  At the time when the Executor and Russel Dzete were supposed to be representing the interests of the company and the applicants in cases No. HC 3332/15, and HC 268/16, against Gerald, it was discovered in fact that in case No. HC 1205/15, Russel Dzete was representing the 1st respondent.  The applicants again believed that there was collusion between the 1st respondent and Gerald in his claim of the property from the estate.  There was also the alleged dubious appointment of one Alen Badzarigere to do a forensic audit.  1st applicant claims to have uncovered at the time the fact that in Mr Badzarigere’s company, Badzarigere and Russel Dzete were business associates.  In that company profile, Badzarigere was described as a Managing Director whilst Dzete was desribed as a legal executive.  The appointment of Badzarigere was said to be improper.

In short, instead of being simply a neutral unbenefitting executor, she allegedly began dipping her own hands in the estate jam tin.  Instead of solving the problems of the estate she allegedly became part of the problems.

The 1st respondent was also accused of having shown undue favour to 4th respondent in a manner intended to prejudice the other beneficiaries of the estate.  She was further accused of delaying the winding up of the estate by involving herself in matters that had nothing to do with the estate but to further her own personal interests or of those persons aligned to her.  It was the applicant’s claim that the multiplicity of litigation in the estate was testimony of the breakdown of the relationship between the Executrix and the beneficiaries in the estate hence they sought her removal.

The 1st respondent, who all along had been self acting, had filed all papers vigorously opposing her removal from the office of Executrix.  I must say that it is unusual for an Executor to want to cling to that office when six (6) out of seven beneficiaries no longer want her, and the seventh being none committal.  I must say though that I am cognissant also, of the Master’s Report in case No. HC 2183/16 seemingly supporting her continuation as executrix then.

On the date of the hearing on 6 June 2018, 1st respondent was then represented by Mr G Sengweni of Messrs Sengweni Legal Practitioners.  It is Mr N Mazibuko who stood up and advised the court that counsel was pretending as if all was well when he ought to have filed his heads of argument within ten (10) days of assumption of agency.  In fact the 1st respondent’s heads were more than one and a half months out of time.  It may be noted that the rest of the respondents, including 4th respondent had not filed any papers anyway.  They were automatically barred.  This meant also, that 1st respondent as Executrix effectively had no beneficiary to the estate on her side.  Six (6) were applying for her removal whilst the 7th did not oppose that application.  Mr Mazibuko indicated that even after reminding counsel for the 1st respondent at some stage that the heads were out of time, the heads were just filed with no application for condonation to explain the delay.  Mr Mazibuko then submitted that with the attitude displayed towards compliance with the rules of court, the court should treat the application as an unopposed matter unless it is inclined to entertain an application for the upliftment of the bar.

When asked about Mr Mazibuko’s concerns, it was only then that counsel for the 1st respondent confirmed that it was correct that he assumed agency on 12 April 2018.  The matter was then post-poned sine die the reason being that 1st respondent had been involved in a car accident sometime in January 2018 and therefore was unable to give full instructions to a legal practitioner.  Counsel for the 1st respondent then said he would make a brief verbal application for the upliftment of the bar.  Counsel mainly repeated the accident story and that on 14 April, 1st respondent had not attended court because of the said accident.  He said that instructions were given by phone and that the papers were only obtained on 24 May 2018.  He read the voluminous record and filed the heads on 29 May 2018.  He claimed therefore that the failure to file the heads in time was not willful but due to circumstances beyond his control.  Counsel then sought to incorporate the rest of the papers filed of record and prayed for the upliftment of the bar.

Mr Mazibuko in response argued that 1st applicant was overplaying “the accident and sympathy card.”  He said it was known and appreciated that she was involved in an accident in January 2018.  He however, argued that the record will show that all the papers, including the notice of opposition and opposing affidavit were filed long back in 2017.  The applicants filed the Answering Affidavit on 31 August 2017 and served the heads of argument on 1st respondent on 29 September 2017 at 1448 hours.  It appears to this court to be true as argued by applicants that from 29 September 2017, 1st respondent thereafter did nothing until she was involved in an accident in January 2018.  It is also the applicants’ argument that the need for further instructions submitted by her counsel is a fallacy.  Even in the circumstances, the matter apparently was initially set for hearing on 12 April 2018.  The Notice of Set Down was served on 26 April 2018, a full one months and a week before the hearing, yet counsel only assumed agency on the date of the hearing.  This was despite the fact that the matter had been post-poned on 12 April 2018 and she had been hit with costs on an attorney and client scale.

Even at the time that counsel was served, he could and should have realised that he needed to file heads of argument at least five (5) days before the hearing in terms of the court rules.  He did not do so.  He only filed less than the stipulated five (5) days.

It has always been stated that where one files heads of argument out of time one needs to file an application for condonation first or at least the heads of argument be filed accompanying such application.  It is improper to simply file heads without an accompanying or preceding application for condonation explaining the delay.

It is even taking the court for granted to simply file one’s heads after being reminded by a fellow legal practitioner that one is out of time.  The court cannot accept a situation where the same heads are simply filed with no written application or at least an accompanying application.  Further, counsel for the applicant simply sat, ready to proceed with argument until it was pointed out by his colleague from the opposite side that the heads were filed out of time.  It is improper in those circumstances and only after being asked by the court, to then abuse Rule 4C of the court rules to make a brief verbal application and ask the court to use its discretion and condone the none compliance.  Rule 4C should be for very rare, unforeseen and deserving circumstances.

In any case, Rule 238 (2a) of the High Court Rules, 1971, is clear that;

“Heads of argument refered to in Subrule (2) shall be filed by the respondent’s legal practitioner not more than ten days after the heads of argument of the applicant or the excipient, as the case may be, were delivered to the respondent in terms of Subrule (1)

Provided that-

(i)	No period during which the court is on vacation shall be counted as part of the ten day period;

(ii)	The respondent’s heads of argument shall be filed at least five days before the hearing.”

In casu, I will take the approach taken by MAKARAU J in Vera v Imperial Asset Management Co. 2006 (1) ZLR 436 where the learned Judge, (as she then was) pointed out that the operative part of Rule 238 (2a) of the Court Rules is not found in the proviso but in the main provision.  It is to the effect that respondent is to file his heads of argument within ten days of being served with the applicant’s heads.  That is the immutable rule.  However, in the event that respondent is served with applicant’s heads close to the set down date, he shall not have the benefit of the full ten day period within which to file and serve heads stipulated in the main provision but shall have five clear days to do so.

The court went on to state that where a respondent’s heads are not filed timeously, in accordance with Rule 238 (2a), the respondent concerned is automatically barred and the court may:- (a)	deal with the matter on the merits, or (b) direct that the matter be set down on the unopposed roll.  In that case, the court considered it in the interest of justice, so as to avoid further costs and delays, to exercise the discretion vested in terms of Rule 4C simply to grant applicant a default judgement.

In casu, and as already stated, the other three respondents had not filed any opposing papers and were long barred. That left the 1st respondent unsupported by all seven (7) beneficiaries of the estate anyway.

Accordingly, applicants are  granted the order as prayed for.

Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

Sengweni Legal Practice, 1st respondent’s legal practitioners