In re: The Estate of the Late Patrick Matimura

### Preamble
HH 12-2010
DR 375/02
In re: THE ESTATE OF THE LATE
PATRICK MATIMURA
HIGH COURT OF ZIMBABWE
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In re: THE ESTATE OF THE LATE PATRICK MATIMURA

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 21 December 2009 and 18 January 2010

REFERRAL OF MATTER IN TERMS OF ORDER 38 RULE 313 OF HIGH COURT RULES 1971,

Mr Hungwe of Messrs Hungwe and Partners and the Taxing Officer

BERE J: Mr Hungwe of Messrs Hungwe and Partners legal Practitioners, Harare is the duly appointed executor in the above referred estate. The executor has been involved with this estate from 2005 up until now. Counsel has yet to draw up the final estate account.

It is noted that this estate has been quite involving as it necessitated quite some protracted litigation in order to trace and fully account for some of the state assets.

In presenting his bill to the taxing officer the executor has sought to rely on the law society tariff of 2009 for work done from the year 2005 up to 2009. The taxing officer felt constrained to pass the bill as he felt it was not competent for the executor to rely on the Law Society of Zimbabwe tariff for work done before that particular tariff came into operation. The executor thought it was proper to do so and this culminated in the taxing officer referring the matter to me in terms of the rules of this court\(^1\).

It is necessary to re-state the arguments raised by the parties involved in this case since no formal papers were filed as the cited rule does not seem to provide for the filing of proper court papers.

The executor’s position as I understood it was that this particular estate has been quite involving and can be traced back to the year 2005 when he was duly appointed executor of this estate. The executor worked on this matter from 2005 up until March of 2009 when he had to attend court to note judgment in one of the cases involving the estate which incidentally I had the privilege to preside over.

Counsel’s uncontroverted argument was that in his capacity as executor services were rendered and reasonable costs incurred which costs his law firm is entitled to recover from the estate itself.


In buttressing his position the executor sought to rely on the letter of 15 December 2009 from the Law Society of Zimbabwe as well as the case of Kwindima Fabiola v Mvundura Louis². I will comment on these later in my judgment.

It was further argued by the executor that he could not have presented his bill of costs to the taxing officer before he had finished all the work involving the estate in question hence the delay in compiling and presenting the bill for taxation.

The executor firmly believed that once he had presented the bill to the taxing officer, the taxing officer could not raise any objection mero moto unless such officer had some interest in the matter. In fact the executor’s argument was so blunt – he argued the taxing officer had no authority to deny his law firm the fees as per his bill of costs.

Mr Mudefi (“the taxing officer”), whilst accepting that he had no qualms with the compilation of the bill per se raised concern with the executor’s use of the 2009 Law Society fees tariff for work that was done long before that tariff came into operation.

The taxing officer’s position was that he believed that every year the Law Society of Zimbabwe publishes its tariff for fees in order to guide legal practitioners in recovering their fees for work done and that the tariff applicable in each year must be restricted to the work done in that particular year.

It was also the taxing officer’s position that his duty was not merely to rubber stamp bills of costs presented to him but raise objections if he felt such bills did not comply with the relevant tariff, and in this case the Law Society tariff. The officer was of the view that if he felt the fees charged were a departure from those allowed by the relevant tariff, and therefore unreasonable, he could on his own initiative raise an objection, even in the absence of the other party to the litigation.

The Legal Position

In my view this matter ought not to have ended up on my desk for guidance. I consider the issues raised to have been fairly straight forward and that recourse ought to have been had to the relevant High Court rules on taxation.

The rule in question reads as follows:-

“In the taxation of costs in respect of work done in connection with any matter not referred to in subrule (2), including the taxation of costs as between a legal practitioner and his own client in respect of work done in connection with judicial proceedings, a taxing officer shall be guided as far as possible by any tariff by the Law Society of
 Zimbabwe or recommended by the Council of the Society under the Legal Practitioners Act, 1981 [Cap 27:07]” (my emphasis)\(^3\)

It is quite apparent to me that the above referred rule makes it mandatory for the taxing officer to be guided by the Law Society of Zimbabwe. The taxing officer’s discretion is limited to the guidelines as provided for by the Law Society of Zimbabwe and he has every reason to demand full compliance with the relevant tariff in the taxation of fees charged by any legal practitioner.

It is clear that the taxing officer was within his rights to demand that work done in 2005 be charged in accordance with the relevant and applicable Law Society tariff as at that year. In my view the subsequent years ought to have followed the same approach. It was certainly not competent for the executor to seek to rely on the tariff of September 2009 in his computation of fees due to him for any work done before that date. Such any approach was clearly a violation of the Law Society guidelines.

Once there was disagreement between the taxing officer and the executor it became unavoidable for the matter to be referred to a judge in chambers for a determination hence the referral of the matter to me.

The approach adopted by the taxing officer is specifically provided for under rule 313 of the High Court Rules\(^4\) and that rule requires no interpretation.

There can be no question that the taxing officer is not merely there to rubber stamp any bill for taxation presented to him. A cursory reading of order 38 shows that the taxing officer has a lot of discretion thrust upon him and he is therefore not always expected to be in agreement with any bill presented to him. In determining whether the fees charged are reasonable, the officer has to inter alia refer to the relevant tariff and this is precisely what he did in this matter.

The executor in this matter has sought to rely on the letter from the Law Society of Zimbabwe as authority for the proposition that he was justified to rely on the tariff of 2009 to charge for work done prior to that date.

With respect the letter from the Law Society of Zimbabwe cannot possibly be relied upon as authority for the proposition to flout the Law Society’s own regulations for the levying of legal fees. That letter is not precedent. If anything it is no more than an ordinary letter carrying the opinion of the executive secretary of the Law Society as an organisation.

\(^3\) Order 38 rule 308(3) of High Court of Zimbabwe rules, 1971
\(^4\) Order 38 rule 313 of High Court of Zimbabwe rules, 1971


The Law Society in its own wisdom has year after year created tariffs which must be used in the computation of legal fees by its members. None of those tariffs are to be used with retrospective effect in the absence of the Law Society specifically stating so. In any event it is inconceivable in my view that the Law Society would encourage its members to recoup their legal fees in United States dollars for the time when it was illegal in this country to deal in foreign currency without complying with the relevant exchange control regulations.

The executor has also sought to rely on the case of Kwindima Fabiola and Mvundura Louis (supra) as another authority to justify the use of the Law Society tariff of 2009 for use for work done prior to that date. The argument raised was that the estate would be unjustly enriched if the executor were to be forced to rely on tariffs which would result in him getting the valueless local currency.

I have gone through the referred case and I am afraid this case has been quoted out of context. The ratio in Kwindima’s case (supra) has either been completely misunderstood or there has been an conscious effort to hijack it. In the first place, that case was specifically dealing with a claim for damages and the instant case has nothing to do with such a claim.

The issue in the instant case is simply whether or not the executor should use the Law Society tariff of 2009 for work that was done prior to that year. The much talked about tariff clearly states in its preamble that it is to be “with effect from 1 April 2009”. If the Law Society wanted the tariff to be used for any other period other than that stated then it should have stated so.

I am aware of the difficulties which have dissuaded the executor from relying on the tariffs for 2005, 2006 and 2007. The effect of relying on such tariffs is that the executor will be laden with a bill in local currency, which currency has been rendered obsolete or otiose by the advent of dollarization. Although officially the local currency remains legal tender in this country it is not a secret that the introduction of the multi currency regime has literally led to the debasement of the Zimbabwe dollar and its subsequent and unceremonious disappearance from circulation.

In my view the issues to do with the current value of the Zimbabwe dollar are issues which require the intervention of the legislature and not the courts. The legislature must come up with an acceptable method of giving value to the Zimbabwe dollars that have literally been locked out of circulation. This has affected almost even citizen or enterprise in the country.


The predicament the executor finds himself in is therefore not peculiar to him. I did comment in an almost related matter on this aspect in the case of Blessmore Chanakira\textsuperscript{5}.

In conclusion I am more than satisfied that the method of computing fees desired by the executor is untenable. The taxing officer must be commented for his vigilance for he was justified to decline passing the executor’s bill.

The matters raised are of some significance and for that reason there shall be no order as to costs.

\textitHungwe \& Partners, legal practitioners and the Taxing Officer}
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