Danidzirai Makamure and Constance Mataure v Wellington Makamure and Albert Chitaunhike N.O and Estate Late Vongai Vaida Makamure and Master of the High Court of Zimbabwe N.O

### Preamble
1
HH 687-18
HC 1920/18
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DANIDZIRAI MAKAMURE

and

CONSTANCE MATAURE

versus

WELLINGTON MAKAMURE

and

ALBERT CHITAUNHIKE N.O

and

ESTATE LATE VONGAI VAIDA MAKAMURE

and

MASTER OF THE HIGH COURT OF ZIMBABWE N.O

HIGH COURT ZIMBABWE

MANZUNZU J

HARARE, 18 October 2018 & 25 October 2018

Opposed Application

P Garayi, for the 1st & 2nd applicants

C Mavhondo, for the 1st respondent

C Takaendesa, for the 2nd & 3rd respondents

MANZUNZU J: This is application in terms of s 52 (9) (i) of the Administration of Estates Act [Chapter 6:01]. The relief sought has been couched in the following terms:

“IT IS ORDERED THAT:

The application challenging the acceptance of claims made by the first respondent be and is hereby granted.

The first respondent’s claims for medical and funeral assistance cannot be sustained and therefore must be rejected.

The second respondent is ordered to amend the distribution account by specifically removing the medical expenses claim of US$28 869.00 and funeral expenses claim of US$20 210.00 from the distribution plan and to include funds left in the ZB Bank account, funds from Mufadziwavanhu and Wellington Tabano in the distribution account.

The first respondent to pay costs on an attorney-client scale.”

The application is opposed by the first, second and third respondents. In opposition the

first respondent raised what is more of a point in limine. First respondent says the application was brought prematurely as it fails to meet the requirements of s 52. On that basis alone he seeks for the dismissal of the application with costs.

This point in limine was also supported by the second and third respondents. The second point in limine was that, the application was filed out of time and is not properly before the court. The cases of Mayiswa v Master & Another 2011 (2) ZLR 441 and Kanyere v Kanyere

HH 826/16 were relied upon.

It is important to examine the provisions of s 52 (9) (i) of the Administration of Estates Act, to see if the requirement laid therein have been met by this case.

The relevant part of s 52 reads;

52 Administration and distribution accounts

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Every executor’s account, except in such cases as the Master may rule otherwise, shall lie open for inspection—

at the office of the Master…..

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The executor shall give due notice that the account is so open to inspection by advertisement in the Gazette and in a newspaper circulating in the district wherein the deceased resided or carried on his principal business, and shall state in that notice the period during which and the place at which the account will lie open for inspection.

…….

Any person interested in the estate may at any time before the expiration of the period allowed for inspection lodge with the Master in writing any objection, with the reasons thereof, to that account.

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 it:

Provided that –

Any person aggrieved by any 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 set aside the direction and the High Court may make such order as it may think fit;

……

…….

…….”

This section can be summarised thus:

(a)	Subsection (6) obligates the executor to advertise giving notice to the general

public that the account was going to lie for inspection.

(b)	Aggrieved parties will lodge their objections with the Master before the end of the period open for inspection as per subsection (8).

(c)	In terms of subsection 9 (i) the Master must consider the account and any objections lodged and then give direction. It is this direction which can be challenged in motion proceedings.

The brief history of the application before me is that the late Vongai Vaida Makamure

died on 22 May 2016. Her estate was registered with the Master and the second respondent was appointed executor dative on 14 February 2017. The executor prepared his first interim account wherein he included the first respondent’s claims for $20 210 being medical expenses and $28 869 as funeral expenses. The applicants and the first respondent are some of the children of the late Vongai Vaida Makamure.

Incensed by the inclusion of the first respondent’s claims the applicants wrote a letter to the executor on 24 August 2017 registering their displeasure at the inclusion of those two claims. This is the letter which they refer to as their objection. The letter is copied to the Master.

To show a clear understanding of the requirements of this application under s 52 (9) the applicants outlined in their affidavit at para 11 as follows:

“REQUIREMENTS FOR THE APPLICATION

11. I have been advised that for this application to be a success, I must satisfy this Honourable 	Court with the following,

i. That the Executor Dative has accepted claims and advertised a distribution account. 			See Annexure “B” being a copy of the distribution account. (my emphasis)

ii. That that distribution account has been brought to the attention of the Master of 			High Court together with objections thereof,

iii. That the Master of High Court has given a direction to the objecting party to 				approach this Honourable Court. See Annexure “C” being a copy of the direction 			given by the Master of High Court. (my emphasis)

12. As it more fully appears from Annexure “C” referred to above, this application is being 	made within the stipulated thirty days from the date of receipt via post (30/01/18) of direction 	by the Master.”

What the applicants refer to as the direction by the Master is a letter of 17 January 2018 written to the applicants by the Master. The letter reads;

“RE: ESTATE LATE VONGAI VAIDA MAKAMURE

Pursuant to a meeting held at our office on 28 November 2017, kindly be advised that 	it    would appear our efforts to find an amicable resolution have failed considering that the 	other

beneficiaries are not attending meeting.

Since acceptance and or rejection of claims is a prerogative of the executor, our office is 	incapacitated to adjudicate on the matter. It then follows that any aggrieved parties may 	approach the courts for redress within 30 days.

The executor is thus advised to proceed with administration of the issue.”

The letter shows that the Master engaged the parties for an amicable settlement but that failed.

The Master was also correct to state that acceptance or rejection of claims was a prerogative of the executor. But it is not correct that the Master’s office is incapacitated to adjudicate on the matter because s 52 (9) is clear in that it gives powers to the Master to consider the account together with objections and the Master “shall give such direction thereon as he may deem fit.”

This shows that the Master has powers to decide on the objections, but at what stage should that be done? That should be done only when the account has been advertised and lie open for inspection, see s 52 subsection (6) as read with subsection (8). The Master in that letter concluded by saying the executor is advised to proceed with the administration of the issue. The statement is ambiguous. It does not determine the issue. This is the letter which the applicants say was the decision by the Master. It cannot stand as a decision for reasons already stated. Firstly there was no advertisement placing the account to lie for inspection. The applicant could not show any. Secondly, the so called objection was a letter written to the executor and not the Master. The so called decision of the Master was mere correspondence which carried no direction.

On the whole there is no direction of the Master to challenge. The point in limine succeeds. The application is premature and cannot stand when it is trying to challenge the non-existent.

Accordingly;

IT IS ORDERED THAT:

The application is dismissed with costs.

Chinawa Law Chambers, 1st & 2nd applicants’ legal practitioners

Mhishi Nkomo Legal Practice, 1st respondent’s legal practitioners

Charamba & Partners, 2nd & 3rd respondents’ legal practitioners