Omega Mpofu and Job Kadengu v Ashton Musunga N.O. and Vimbai Chituku and The Master of the High Court of Zimbabwe

### Preamble
1
HB 269/22
HC 658/21
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OMEGA MPOFU

And

JOB KADENGU

Versus

ASHTON MUSUNGA N.O

(In his capacity as the Testamentary Executor

Of Estate Late Tapfumaneyi Joshua Kadengu

DR 2100/19)

And

VIMBAI CHITUKU

And

THE MASTER OF THE HIGH COURT OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 17 OCTOBER AND 3 NOVEMBER 2022

Opposed Application

W. Ncube, for the applicants

T. Vudzijena, for the 1st respondent

Q. Chimbo, for the 2nd respondent

No appearance for the 3rd respondent

KABASA J: 	The applicants are siblings and the 1st respondent was the testamentary executor of their deceased father’s estate whilst the second respondent is the applicants’ stepmother.

The 1st respondent administered the estate to finality and the first and final distribution account was confirmed by the 3rd respondent on 30th July 2020.

This application seeks to set aside the first and final distribution account and re-open the same so the 1st respondent prepares a fresh account implementing the last Will and Testament of the applicants’ father.

The order sought is couched as follows:-

“1.	The first and final distribution account in estate of the late Tapfumaneyi Joshua Kadengu (DRB 2100/10) be and is hereby set aside.

2.	1st respondent be and is hereby ordered to re-open the first and final administration and distribution account in the estate of the late Tapfumaneyi Joshua Kadengu and thereafter prepare and file with 3rd respondent a fresh account implementing the last Will and Testament of the late Tapfumaneyi Joshua Kadengu.

3.	The revocation by 1st and 2nd applicants of their consents to be paid off by 3rd respondents for their respective testamentary shares in stan (sic) No. 6164 Mangwende Drive East, Old Highfield, Harare and No. 39 Ushewokunze Housing Co-operative, Glenview, Harare be and are hereby declared to be valid and effectual.

4.	1st and 2nd respondents shall pay cost of suit.”

The application is opposed by the 1st and 2nd respondents.  The 3rd respondent did not file any papers and is therefore taken to be willing to abide by the decision of the court.

The background to this application is this:  The late Tapfumaneyi Joshua Kadengu “the late Kadengu” left a Will in which he bequeathed the two aforementioned immovable properties to his 2 children and his wife, step-mother to the children, in equal shares, share and share alike.  The 1st respondent was appointed the testamentary executor.  The applicants agreed to be bought out by their step-mother and confirmed as much to the 1st respondent.  The 1st respondent proceeded to administer the estate and had the two immovable properties valued by valuators on the 3rd respondent’s panel.

The Highfield property was valued at ZWL 960 000 as at 10 January 2020 and the Ushewokunze Co-operative stand was valued at ZWL 128 000 as at the same date.  The 1st respondent used these valuations and shared the properties’ nett value equally among the three beneficiaries.

After the confirmation of the first and final distribution account by the 3rd respondent, the 1st respondent communicated with the 1st applicant by letter dated 24 August 2020 and attached the confirmed account.  The 1st applicant’s response was to write to the 3rd respondent raising issue with the valuation of the property in RTGS which she argued was tantamount to cheating her out of the true value of her inheritance.  She also pointed out that her consent to be bought out was premised on the understanding that the properties would be valued in US$ and she and the 2nd applicant would be paid in the same currency.  She then sought to raise an objection to the account and requesting that it be re-opened.

The 3rd respondent responded to this communication pointing out that the matter was now out of his hands as the account had been confirmed.

The applicants subsequently sought legal advice and filed the present application.

In opposing the application the 1st and 2nd respondents took points in limine.  The 1st respondent raised a further point in limine at the hearing of the matter.  The points in limine are that:

1.	The application is a review application disguised as an ordinary court application and must therefore be dismissed.

2.	The court has no jurisdiction to deal with the matter as a court of first instance in light of the provisions of section 52 (9) of the Administration of Estates Act which provides for a review of the 3rd respondent’s decision before approaching the court.

These points in limine essentially raise the same issue.  I therefore will not treat them as two district issues.

The applicants’ argument can be summarized as follows:

When the 1st respondent commenced administering their father’s estate, the 2nd respondent offered to buy the applicants out of their shares and they agreed but such payment was to be at market value determined by a valuation in United States dollars.  The 2nd applicant proceeded to advise the 1st respondent concerning his willingness to be bought out.  The 1st respondent thereafter reached out to the 1st applicant who in turn confirmed her willingness to be bought out.  The 1st applicant’s request that 1st respondent opens a “whatsapp” group to facilitate communication among the group members was rejected with the 1st respondent expressing that he preferred to communicate individually with each one of them.

The applicants aver that such refusal might have been a strategy to keep them in the dark as the next communication related to the confirmation of the account by the 3rd respondent.

The applicants decided to revoke their consent, refused the payment in RTGS and proceeded to have their own valuation of the two properties.  Such valuation which was done on 7 October 2020 put the Highfield property at US$65 000 and the Ushewokunze stand at US$14 000.  The valuations in RTGS are therefore a pittance and the 2nd respondent would ultimately benefit more which is contrary to the wishes of the late Kadengu.

The 1st and 2nd respondents’ argument is that the properties were valued in RTGS, which is the official currency in Zimbabwe.  The applicants agreed to be bought out and that was the agreement the 1st respondent respected.  Such agreement was not qualified.

The crucial communication related to the agreement relating to the “buy out” and the 1st respondent dutifully ascertained this fact and proceeded to administer the estate respecting such agreement.  He had no obligation to engage in other consultations as the crucial communication was done.  The issue of valuation in US$ is therefore an afterthought.

In any event, so argued the 1st respondent, if the parties are desirous to come to an agreement as family they are free to do so and reach an amicable agreement as family.

The 2nd respondent’s opposition mirrors the issues raised by the 1st respondent.  No useful purpose will be served in repeating what has essentially been covered by the 1st respondent’s opposition.

The question to be answered is whether a case has been made for the setting aside of the first and final distribution account.

I will turn first to the point in limine.  Should this matter proceed beyond this point in limine?  Is the application properly before the court?

Section 52 of the Administration of Estates Act, Chapter 6:01 sets out the procedure to be followed in administering a deceased estate.  Section 52 (9) thereof states:-

“The Master shall consider such account, together with any objections that may have been duly lodged, and shall give such directions thereon as he may deem fit:

Provided that –

any person aggrieved by such direction of the Master may, within thirty days after the date of the Master’s direction, and after giving notice to the executor and to any person affected by the direction, apply by motion to the High Court for an order to set aside the direction and the High Court may make such order as it may think fit.”

In casu the applicants’ argument is that they are not aggrieved by the 3rd respondent’s decision or direction.  The actions of the 3rd respondent do not lend themselves to criticism calling for a review.

The applicants’ source of discontent is directed at the 1st respondent.  Allegations of bias in favour of the 2nd respondent, unfairness and impropriety in the manner the estate was handled appear to be the anchor of this application.

In Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S) the Supreme Court stated that one has to look at the grounds of the application to determine what the application is about.  An application for a declaratur does not become one just because a litigant chooses to call it that when what is sought is in actual fact a review.

In Ex-Constable Matsitsiro v The Commissioner General of Police & 2 Others HB 83-18 MOYO J considered the grounds the applicant sought to impugn the decision of the first and second respondents and held that such grounds were in essence grounds for review. The applicant had brought the application as one for a declaratur. The learned Judge had this to say:

“This is therefore an application for review brought as an application for a declaratur for reasons known to the applicant.

Our courts have held that a party should not be able to get around the requirements for review proceedings by instituting proceedings for a declaratory order.  (Kwete v Africa Community Publishing and Development Trust HH 216-98, Marashu v Old Mutual Life Insurance Co Ltd 2000 (2) ZLR 197 (H).”

In Stella Hapaguti v Cecil Madondo (in his capacity as executor dative in the late Existo Francis Hapaguti DR 401/09 and Anor HH 94-15 CHITAKUNYE J (as he then was), a matter wherein the applicant was seeking a declaratur which in essence sought a reversal of issues already resolved by the Master, the learned Judge had this to say:-

“It is evident that the core of the applicant’s dissatisfaction with the manner in which the estate late Existo was administered include allegations of bias, malice, collusion between the Master and the first respondent and her agent, interest in the cause by the first and second respondents when the reaching out agreement on the inheritance plan.  It is clear to me that applicant is in fact and in truth seeking a review of the Master’s decisions made from the start of the administration of the estate to the approval of the inheritance plan.  As it is she is way out of time from the time those decisions were made for either review or appeal.”

In casu none of the 3rd respondent’s direction or decisions is being impugned.  A reading of the applicants’ pleadings shows that the 3rd respondent’s confirmation of the account and the response to the 1st applicant’s letter advising her that with the confirmation of the account the matter was now out of the 3rd respondent’s hands are not being taken issue with.  There are therefore no reviewable grounds as the Master’s decision is not being impugned for being irregular in any of the grounds that a decision may be subjected to a review application.

Can it be argued that the allegations of impropriety on the 1st respondent’s part which did not taint the 3rd respondent’s decision ought to be attacked through an application for review of the 1st and 3rd respondent’s decision?  I think not.  There is nothing to be reviewed about the 3rd respondent’s confirmation of the account.

In Mashakada v Master of the High Court & Anor 2001 (2) ZLR 311 (H) the court dealt with an application which pitted siblings whose late father’s Will was not valid for failure to comply with the requirements of the Wills Act but the siblings and their mother had come to an agreement to adopt the contents of these purported Wills as their own agreement as to how the estate of their father and husband was to be administered.  The sisters had later sought to resile from such agreement and one of the sisters had proceeded to administer the estate in terms of the provisions of intestate succession.  CHINHENGO J found for the applicant who sought the court’s intervention to allow the estate to be administered in terms of the purported Wills and the siblings’ agreement to that effect. The learned judge was not persuaded to accept the sisters’ purported repudiation of the beneficiaries’ agreement because not only had such repudiation been done after the death of the siblings’ mother but the reasons proffered were not consistent, raising doubt as to why such repudiation was sought.

Whilst in the Mashakada case (supra) there were no allegations of impropriety on the part of the executor, the import of the application in so far as it sought to enforce the beneficiaries’ agreement mirrors the relief sought in casu.  Such relief is anchored on a purported agreement of the beneficiaries to dispose of the bequeathed property on a US$ valuation.

Equally in Chipo Zvavanondiita v Runiya Ndlovu and Ors HB 86-16 MATHONSI J (as he then was) allowed an application for the re-opening of an estate and appointment of an independent executor where the applicant sought such re-opening after the estate of her late mother-in-law was administered to her exclusion by her late husband’s sisters.  The immovable property which formed that estate had been transferred to one of her late husband’s sisters leaving her out yet she had developed the house with her husband who was entitled to inherit from his mother.

Whilst impropriety was alleged on the part of the 1st respondent who had clandestinely excluded the applicant, the court heard the matter as an ordinary court application and not an application for review.

It is my considered view that this court has jurisdiction to hear this matter seeking as it does to re-open a distribution account on the basis that it did not implement the agreement of the beneficiaries.

My finding on the issue of jurisdiction equally applies to the issue of whether this application ought to have come as a review and not an ordinary court application.

This court is being asked to determine whether an agreement by the beneficiaries was not implemented warranting the re-opening of the account.  The court therefore has jurisdiction and the application is not a review application disguised as an ordinary court application.

The point in limine does not find favour with the court and is accordingly dismissed.

I turn now to consider whether the applicants have made a case for the re-opening of the distribution account.

In the Mashakada case (supra) the beneficiaries had filed an affidavit with the Master which read:-

“We the undersigned would like our late father’s estate to be distributed according to his written Will.”

This was the agreement the beneficiaries entered into, making their father’s otherwise invalid will their own agreement by which they agreed to have their father’s estate distributed.

In casu the 2 beneficiaries had agreed that the 2nd respondent would buy them out of the two properties. This is all the agreement stated and was not qualified.

The second applicant curiously associated with the 1st applicant’s founding affidavit, more particularly on her assertion that the 2nd applicant visited the 1st respondent’s offices confirming the agreement to be bought out by the 2nd respondent.  He does not go on to say he specifically mentioned to the 1st respondent that such agreement was on condition the property was valued in US$ and payment to be in the same currency.

It is important to note that as at September 16 2019 Zimbabwe was no longer utilising the multi-currency basket.  The RTGS was the official currency. SI 142 of 2019 specifically provided that:-

“Subject to section 3 with effect from the 24th June 2019, the British pound, United States dollar, South African rand, Botswana pula and any other foreign currency whatsoever shall no longer be legal tender alongside the Zimbabwe dollar in any transaction in Zimbabwe.  Accordingly the Zimbabwean dollar shall, with effect from the 24th of June 2019, but subject to subsection 3 be the sole legal tender in Zimbabwe in all transactions.”

The valuation of the properties by an official on the 3rd respondent’s panel of valuators would therefore have ordinarily placed an RTGS value on these properties.  The situation would have been different if such valuation was done between 2009 and 2018 when the US$ was the currency of choice in the multi-currency dispensation that was obtaining then.

It is with the foregoing in mind that I read the correspondence that was exchanged between the 1st applicant and 1st respondent.

On 20th September 2019 at 15:36:05 the 1st respondent wrote to the 1st applicant:-

“Morning Omega

We advise that Mr. Job Kadengu attended at our offices yesterday.  He advised that he wants to be bought out of both properties by Vimbai Chituku.  We kindly request your position so that we know the way forward.”

At 20:58:50 the following response was received by the 1st respondent from the 1st applicant:-

“Hope this email finds you well.  Yes, I would like, mother Vimbai Chituku, to buy me out of both properties.”

No mention was made of the fact that such consent was on condition the properties were to be valued in US$ and the payout was to also be in that currency.

The fact that the 1st respondent declined to open a whatsapp group so as to update on progress must not be looked at in isolation.  He said he preferred to communicate directly with the beneficiaries, a point ably demonstrated by the communication he had with the two applicants seeking to verify whether they had agreed to be bought out.

I find it an unfair criticism and a tasteless casting of aspersions on the 1st respondent’s conduct to suggest that he was motivated by bias, fraud or some such unsavory consideration when he did not accede to the opening of a whatsapp group.

The 1st respondent sought the beneficiaries’ position as regards what was crucial, that is how these properties were to be administered.  What was important was to establish how the 1st respondent was to deal with the properties and he got the confirmation from the applicants.

How can he then be criticised for failing to honour an agreement when what is in black and white is what he proceeded to do.  Why was it not made clear in these e-mails that such consent was only being given on the understanding that the valuation was to be in US$ as well as the payment.

The 1st respondent worked on the basis of a valuation which has not been shown to be fraudulent.

The account lay for inspection and no objections were received.  It is worth noting that the 2nd applicant is based in Zimbabwe and resides with the 2nd respondent, at least this assertion by the 2nd respondent was not controverted.

Was the value of RTGS 960 000 and RTGS 128 000 not a fair market value as at January 2020?  The issue is not about the hyper inflationary environment but the true value of the properties as at the time of valuation.

In Zambezi Gas Zimbabwe (Private) Limited v NR Barber (Private) Limited and Anor SC 3-20 MALABA CJ had this to say:-

“Counsel would like the court to believe that a conversion of a foreign currency denomination to a local currency denomination amounts to a lesser value in the local currency.  This reasoning is wrong at law.  There can be no parity to talk about once it is accepted that the RTGS dollar is a currency denomination with a set legal value.  It is the legal tender used in Zimbabwe and as such carries a specific value.”

The 1st applicant argued that she is based in the United Kingdom but that is neither here nor there.  The properties in question are in Zimbabwe and the estate was administered in Zimbabwe. The valuation was in RTGS, the accepted currency and with a set legal value.

The thrust of the argument is anchored on a failure to implement an agreement.  Such agreement is captured in the e-mails also referred to and as far as the pleadings go, that is what was communicated to the 1st respondent.

The 1st respondent’s assertion that the parties ought to engage each other rather than rush to court must be looked at in light of what is in the pleadings.  The 1st respondent is not saying I did not administer the estate per the beneficiaries’ agreement but that notwithstanding they should talk and agree as a family.  He is in essence saying I did what was expected of me and whatever agreements the beneficiaries had which were not communicated to me remained as between them.  In the same vein they still can engage as they did previously.

The beneficiaries’ agreement as reflected on paper is what guided the 1st respondent.

I find myself unable to read into the agreement as captured in pleadings that which was not so expressly stated.

The 1st respondent simply honoured the parties’ agreement as communicated to him.  The courts have expressed that agreements freely entered into must be respected.  (Magodora & Ors v Care International Zimbabwe SC 24-14, Book v Davidson 1988 (1) ZLR 369.)

To suggest that the 1st respondent implemented part of the agreement and not the whole is a failure, in my view, to ascribe the ordinary grammatical meaning to the correspondence alluded to in which the 1st and 2nd applicant confirmed the agreement they had come to with their step-mother.  Such agreement made no mention of US$ and so it cannot be argued, as Mr. Ncube sought to, that the 1st respondent ought to have disregarded the whole agreement and not implement part of it.

Unfortunate as it is that the RTGS value continues to plummet, I find no justification to re-open the first and final distribution account on the grounds articulated by the applicants.

I therefore hold that the applicants have not made a case for the setting aside of the distribution account and equally the confirmation of their attempt at resiling from the agreement to be bought out by the 2nd respondent.

The 1st and 2nd respondents asked for punitive costs.  I find nothing in the applicants’ conduct deserving of censure.  The casting of aspersions on the 1st respondent is unfortunate but it must be understood from the background of the undeniable loss of value of the RTGS and the applicants’ attempt to get what they believe their late father would have wanted them to get from his estate.

That said, the costs must however follow the cause.

In the result I make the following order:-

1.	The application to re-open the first and final distribution account in estate Late Tapfumaneyi Joshua Kadengu be and is hereby dismissed.

2.	The revocation of the 1st and 2nd applicants’ consents to be paid off by 2nd respondent be and is hereby refused.

3.	The 1st and 2nd applicants shall pay costs of suit at the ordinary scale.

Mathonsi Ncube Law Chambers, applicant’s legal practitioners

Musunga and Associates c/o Messrs Dube-Banda, Nzarayapenga and Partners, 1st respondent’s legal practitioners

Messrs T Hara and Partners, 2nd respondent’s legal practitioners