Nokuthula Ndebele v Nobuhle Mpofu (aka Nobuhle Khumalo) & 2 Ors

### Preamble
1
HB 138/21
HC 978/21
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NOKUTHULA NDEBELE

Versus

NOBUHLE MPOFU (aka NOBUHLE KHUMALO)

And

ROCK STREWN INVESTMENT (PVT) LTD

t/a Kings and Queens Real Funeral Services

And

MASTER OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 14 JULY 2021 & 22 JULY 2021

Urgent chamber application

T. Tavengwa, for the applicant

H. Moyo, for the 1st respondent

DUBE-BANDA J: 	Before me is an urgent chamber application. This application was launched in this court on 7 July 2021. It was placed before me on the 12 July 2021, and I directed that it be served on the respondents together with a notice of set down for 14 July 2021. The application is opposed by the 1st respondent. The 3rd respondent is cited in its official capacity because the implementation of the order sought by the applicant, if granted may require its services. At the commencement of the hearing, applicant withdrew the case and tendered costs in respect of the 2nd respondent.

In this application, the applicant seeks the following relief:

Terms of the final order sought

That you should show cause to this Honourable Court why a final order should not be made in the following terms:

The Provisional Order be and is hereby confirmed.

3rd respondent be and is hereby ordered to appoint a neutral professional executor in the Estate late Felix Ncube DRB 319/21.

1st and 2nd respondents be and are hereby ordered to give a detailed account of all the properties in their possession, and also account for such property that was released from their possession after the demise of Felix Ncube. The said detailed account must be made to 3rd respondent and the executor within (5) five days of service of this order.

1st and 2nd respondents to pay costs of suit on legal practitioner and client scale should they oppose.

Interim relief granted

Pending determination of this matter, the applicant is granted the following relief:

3rd respondent be and is hereby ordered to immediately appoint a curator bonis in estate late Felix Ncube DRB 319/21.

1st and 2nd respondents be and are hereby ordered not to alienate / sell / lease / dispose of property belonging to estate late Felix Ncube.

2nd respondent be and is hereby interdicted from paying any monies due to the late Felix Ncube to the 1st respondent or anyone else pending the appointment of the curator bonis and / or executor of the estate.

1st and 2nd respondents be and are hereby ordered to permit the curator bonis to account and take charge and possession of all property belonging to estate late Felix Ncube property.

Service of provisional draft

Service of this order shall be made by the Sheriff of Zimbabwe upon all the respondents.

Factual background

This application will be better understood against the background that follows. Mr Felix Ncube (deceased) died on the 10th January 2021, in Johannesburg, South Africa. The deceased was married to 1st respondent. The marriage was registered in South Africa. Applicant claims to have been customarily married to the deceased. She avers that she was the second customary law wife of the deceased. 1st respondent disputes that applicant was customarily married to the deceased. According to the 1st respondent the estate of the deceased had been registered with the Master’s Office in South Africa, and an executor appointed in terms of the laws of that country.

Applicant has also registered the estate of the deceased with the Master’ Office in Bulawayo. On the 22nd June 2021, the Master” office invited applicant, via her legal practitioners to pay edict fees for the purposes of facilitating an appointment of an executor dative in the deceased estate. According to the 1st respondent, applicant has not paid such fees. On the 13 July 2021, applicant and 1st respondent attended a meeting at the offices of the Master of the High Court. According to the 1st respondent, the Master informed applicant that due to the type of the marriage between deceased and 1st respondent, her alleged customary law marriage cannot be recognised. The Master is also alleged to have made the point that as the estate has been registered and executor appointed in South Africa, no executor can be appointed in Zimbabwe.  It is against this background that applicant has launched this application seeking the relief mentioned above.

Other than resisting the relief sought on the merits, 1st respondent took a preliminary point which was also a subject of argument in this matter. 1st respondent contends that this application is not urgent and urged this court to dismiss it on this preliminary points without a consideration of the merits.

Preliminary point

At the commencement of this hearing I informed counsel that in this case I shall adopt a holistic approach. This approach avoids a piece-meal treatment of the matter, and the preliminary points are argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on preliminary points despite that they were argued together with the merits. I now consider the preliminary point.

The 1st respondent contends that this application is not urgent. It was argued that this court must dismiss this application with costs on a higher scale. In considering whether a matter is urgent this court looks at the certificate of urgency to establish whether the application is indeed urgent. In Chidawu & Others v Sha & Others SC 12/13 the Supreme Court held that the certificate of urgency is the sine qua non for the placement of an urgent chamber application before a judge. In making a decision as to the urgency of the application a judge is guided by the averments in the certificate of urgency.

The entitlement of litigants to approach a court on an urgent basis is now trite. This court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by its rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice. See: Kuvarega v Registrar General and Another1998 (1) ZLR 188; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27. New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27. In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The onus of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue and have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See: Kuvarega v Registrar General and Another 1998 (1) ZLR 188; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27.

The leading case within this jurisdiction in relation to urgency is Kuvarega v Registrar General & Anor (supra), a judgment by CHATIKOBO J. The learned judge had the following to state at p 193F-G.

What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.

In assessing whether an application is urgent, the courts have in the past considered various factors, including, among others: the consequence of the relief not being granted; whether the relief would become irrelevant if it is not immediately granted; and whether the urgency was self-created. See: New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27. Further to pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See: General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301; Document support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 240 (H); Dextiprint Investments (Pvt) Ltd v Ace Property Investment company HH 120/2002; Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H).

In the certificate of urgency, signed by a legal practitioner of this court it is contended that:

Certificate of Urgency

I, Priviledge Mvundla, a registered legal practitioner of this Honourable Court, practicing as such under the practice of Messrs Mutuso, Taruvinga and Mhiribidi Bulawayo, hereby state that l have read and considered the papers in this matter and certify that the matter is one of urgency of the following reasons:

Applicant was the Second Customary Law wife to the late Felix Ncube who passed away on the 10th January 2021. She is accordingly a beneficiary to the Estate of her late husband.

The Estate has since been registered by the 3rd Respondent, but the Executor has not been appointed as yet. It is Applicant who registered the Estate.

Applicant learnt that the Estate property was shared by the 1st Respondent and the deceased family members in South Africa. Further Applicant learnt that the 2nd Respondent gave funds amounting to (ZAR 250 000.00) Two Hundred and Fifty Thousand rand to the 1st Respondent, which money was due and owing to the Estate. The deceased was a member of and director of 2nd Respondent.

Applicant has learnt that 1st Respondent and deceased family have set a meeting for the 15th July 2021 for purposes of alienating Estate property that is in Esigodini. Applicant has not been invited to this meeting. (My emphasis).

Further Applicant has also learnt that the dividends for the year ending 2020 owed to the deceased by the 2nd Respondent are set to be paid out to the 1st Respondent.

Applicant is set to suffer irreparable damage if 1st and 2nd Respondents release Estate property without following due process. Only the Executor has the mandate reposed on him/her by operation of law to administrate deceased Estate property. Should the meeting of the 15th July 2021 continue the Estate property will be dissipated and Applicant will not have any recourse.

Applicant has no other alternative remedy other than to seek an urgent relief of an anti-dissipation order.

The balance of convenience favors the granting of the relief sought in view of the fact that Applicant seeks an order that is to the benefit of the Estate, beneficiaries and creditors of the Estate.

In its certificate of urgency the applicant sets out a variety of reasons for the contention that the application is one of urgency. There is a massive conflict of fact between the applicant's account of relevant events and that of the 1st respondent. In fact the factual correctness of applicant’s contentions are disputed by the 1st respondent. In his oral submission Mr Tavengwa, counsel for the applicant contended that the trigger point is the meeting between 1st respondent and members of the deceased family set-down for the 15th July 2021. It is averred that the agenda of the meeting is to alienate estate property that is at Esigodini. It is contended that applicant has not been invited to such meeting. This urgent application was then filed to thwart such a meeting and protect estate property.

For the 1st respondent it is argued that this application is not urgent. It is contended that there is no meeting which has been scheduled for the 15 July 2021. No meeting scheduled to distribute property of the deceased. It is contended that applicant is pulling gymnastics to seek attention of the court to entertain an application which is misplaced. It is further argued that this application has been overtaken by events as the estate has already been registered in South Africa, and an executor appointed in that country.

The applicant carry the burden to prove what she alleges, i.e. that there shall be meeting on the 15th July 2021, to distribute deceased’s property.  At this stage applicant must establish a prima facie case. See: (1) Swimming Pool & Underwater Repair (Private) Limited (2) Aepromm Resources (Private) Limited (3) Tolrose Investments (Private) Limited (4) Patterson Fungai Timba v (1) Jameson Rushwaya (2) Annie Rushwaya SC 32/12. In the certificate of urgency it is merely averred that applicant has learnt that there shall be such meeting. Again, in the founding affidavit, she merely avers that she leant that there shall be such a meeting. This is hearsay evidence. In Hiltunen v Hiltunen HH 99/08, it was held that hearsay evidence may be admissible, as per the practice of this court, in urgent and interlocutory applications where an explanation as to why direct evidence cannot be led is tendered and the basis of belief and information by the deponent is fully given in the affidavit. In casu, there is no explanation as to why there is no direct evidence from the person who is the source of this alleged meeting. The applicant dos not give the basis upon which she believes that indeed there shall be a meeting on the 15th July 2021. Again, applicant does not take the court into her confidence and disclose the names of the people who informed her of such a meeting. The hearsay evidence about the meeting is inadmissible. I find that there shall be no such meeting. The urgency is anchored on an inadmissible evidence. In fact the trigger point is itself a falsehood. I cannot find on such a falsehood find that this application is urgent.

For a litigant to successfully motivate the court to hear its matter on an urgent basis, it must show that its matter is out of the ordinary. This court must be on the guard of litigants who try to take advantage and abuse the urgency procedure in order to get a procedural advantage over other litigants that have to wait in queue for their matters to he heard. There must be an emergency. There is no emergency in this case. Legal Practitioners are signing certificates of urgency for flimsy and inadequate reasons. This practice needs to be discouraged. This matter is not urgent and it cannot be afforded a hearing in the roll of urgent matters. It falls to be removed from the roll with an appropriate order of costs.

What remains to be considered is the question of costs. The general rule is that in the ordinary course, costs follow the result. I am unable to find any circumstances which persuade me to depart from this rule. Accordingly, the applicant must bear the 1st respondent’s costs.

Disposition

In the result, I make the following order:

The point in limine on urgency is upheld.

This application is not urgent and is removed from the roll of urgent matters with costs of suit.

Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners

Joel Pincus Konson & Wolhuter, 1st respondent’s legal practitioners