Julian Martin Hamilton Barns v Emmanuel Ngwarati and African Banking Corporation of Zimbabwe Limited and Master of the High Court N.O

### Preamble
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HH 465-25
HCH5671/24
Julian Martin Hamilton Barns
Versus
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Julian Martin Hamilton Barns
Versus
Emmanuel Ngwarati
And
African Banking Corporation of Zimbabwe Limited
And
Master of the High Court N.O

HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE 30 JUNE, 18 July, 4 and 5 August 2025

Advocate T Nyamasoka, for the Applicant
V. Mukwachari, for the 1st Respondent

OPPOSED COURT APPLICATION

INTRODUCTION
CHIRAWU -MUGOMBA J: Central to this matter is the law pertaining to the lodging of claims against a deceased estate in terms of the Administration of Estates Act, [Chapter 6: 01]. “the act”, and action to take when a claim is rejected. The applicant has approached the court seeking the following relief:

1. The 1st and 3rd Respondent do all things necessary to register the applicant as a secured creditor to the Estate Late Phillips Mugadza DR 1174/2022.


2. 1st Respondent be and are hereby ordered to pay costs of suit on a legal practitioner and client scale.

The application

The application before this court bears the heading, “ court application compelling the registration of applicant as a creditor”. The estate in question is that of the late Phillip Mugadza (the deceased) registered as D.R 1174/20. The applicant avers that he and the deceased were in business together and transacted mostly through a company called Kariba Resources Limited. During this business relationship, the applicant became aware that the deceased was facing financial difficulties and his immovable property called 14171 Gunhill, Harare was in danger of foreclosure due to non-servicing of a loan due to the 2nd respondent. After discussions and believing that the deceased was in agreement, the applicant took over payment of the loan. Various payments totalling the sum of USD 193 600 were made as shown by the annexures. In addition, various payments were also extended to the deceased as particularised in the founding affidavit. A claim against the deceased estate was made to the first respondent which was rejected. Annexure ZA, is a letter dated the 9th of July 2021 addressed to the Master of the High Court. It states that the applicant has a financial interest in the deceased estate and gives particulars of this claim. On page 49 of the record, a letter from the first respondent, addressed to a Mr Ranchod whom the applicant had appointed as his representative to pursue the claim is attached. The last paragraph reads as follows, “The above claim was not accepted due to lack of supporting documents. May you please proceed and avail evidence of this claim so that due consideration can be made”. It appears that such ‘evidence’ was availed but the first respondent still rejected the claim.

The opposition

Only the first respondent opposed the application.

Preliminary


The first respondent raised an issue relating to *locus standi*. This referred specifically to the claims made on behalf of Kariba Resources limited, which at law is a separate legal persona.

**Opposition on the merits**

The opposition largely centres on denials. The first respondent avers that there no evidence of risk of foreclosure that was presented. Equally, there is no lessor agreement of the security and loan facility that has been attached. E-mail correspondence does not constitute evidence. There is no written consent of the mortgagor to support the alleged agreement. Payment of USD 193 600 was made to a company called Market Giants (pvt) Ltd and USD 2500 was paid to one Thomas Gono as fees. The attached bank statements have no evidentiary value. There is no proof that the money send via Western Union was received by the deceased. The money expressed in British pounds was for school fees and payment to a third party. Other payments were done to a law firm with no relationship to the deceased and payments were also made to various third parties.

**Answering affidavit**

The applicant filed an answering affidavit pointing out to what he perceived as admissions made. He denied that he had no *locus standi* and he attached a resolution to the effect that he had authority to make claims on behalf of Kariba Resources Limited through a deed of cession and assignment. This authority as per the deed was from the 1st of January 2024. He attached a surety mortgage bond between the second and an entity called, Market Gains (pvt) Limited. Also attached were minutes of a meeting of Kariba Resources Limited ostensibly held on the 28th of December 2023.

**Applicants’ heads of argument and submission**

At the hearing, counsel for applicant largely abided by the heads of argument filed of record. The following were identified as the issues to be determined.

a. Whether or not the applicant has *locus standi* to bring the present action?


b. Whether or not a cessionary agreement between the applicant and 2\textsuperscript{nd} respondent existed?

c. Whether or not the 1\textsuperscript{st} respondent ought to register the applicant as a secured creditor?

d. Whether or not the 1\textsuperscript{st} respondent is indebted to the applicant?

e. Whether or not the applicant’s claim has prescribed?

f. Whether or not the 1\textsuperscript{st} respondent received and/or accessed funds from the applicant or his nominees?

As I will discuss later, these issues completely missed the mark in so far as the role of an executor and the court once a claim is rejected is concerned. The heads of argument were unhelpful in that respect.

**The first respondent’s heads of argument and submissions**

The first respondent’s submissions largely mirrored the heads of argument filed of record. These were anchored on the following. In *limine*, the applicant lacks the *locus standi* in respect to claims of payment made by Kariba Resources Limited. There is no assignment agreement of loan facility established warranting/entitling applicant’s claims against the first Respondent. There are no proper claims made by the applicant against the first respondent and any such claims are prescribed at law. Applicant’s claim of the alleged advance of further credit is illegal at law. Applicant’s claims is affected by the changes in the fiscal legislation and ought to be converted to Zimbabwe dollar and further to ZiG currency. Applicant’s application is incompetent as the estate of Phillip Mugadza is closed and no application for its reopening is made. Applicant has failed to establish the requirements for a compelling interdict. Applicant’s application ought to be dismissed with costs.

**The law**

There is something to be said about the process of registering a claim against a deceased estate, an area of law that is characterised by a dearth of case law in Zimbabwe. It is one that cannot be taken in isolation. Of all the acts that are administrative in nature, the Administration of Estates Act [Chapter 6: 01] is one that has checks and balances all the way to the final liquidation and distribution account. The process commences with the notification of death through the filling of a notice of death and a preliminary inventory. The Master then opens a record and allocates a Deceased Register number, commonly called the D.R number. The preliminary inventory is of particular importance because it notifies the Master whether or not the deceased had assets and whether the estate proceeds on full administration or it is administered summarily. If an executor is named in a will and they are ready to take up the nomination, they are issued with letters of administration as an executor testamentary. At the time of the death of the deceased, the process of nominating an executor where there was no will was governed by s25 of the Administration of Estates Act. Substantial changes have been made through the Administration of Estates Amendment Act, no, 3 of 2024 that came into effect on the 24th of February 2025. Once an executor is appointed, they are issued with letters of administration. These letters official empower the executor to administer the estate. An estate constitutes of assets and liabilities and thus both creditors and even debtors must come forward. How is this done? Section 43 of the act becomes critical. It reads,

“43 Public notice by executors to creditors and others to lodge their claims

“Every executor shall, as soon as he has entered on the administration of the estate, forthwith cause notice to be published in the Gazette and in some newspaper published as circulating in the distinct as when the deceased ordinarily resided, calling upon all persons having claims due, or not yet due, as creditors against the deceased as his estate, to lodge the same with such executor within such period from the date of publication thereof as is therein specified, not being less, save except as in Section sixty-six is provided, than thirty days or more than three months, as in particular circumstances of each case is by the executor deemed proper. All claims in which would be capable of proof in case of the insolvency of the estate shall be deemed to be claims of creditors for the purposes of this Act.”

The requirement that the advertisement should also be flighted in a newspaper circulating in the district where the deceased ordinarily resided is not by chance. It is deliberate because it is based on the assumption that the deceased conducted their business or dealings or are well known in that area. Given the fact that the creditor is now dealing with an executor, they are expected to file a detailed claim. They must give full details of the nature of the claim, the amount claimed and supporting documents if any. This is critical as it enables the executor to fully apply their mind to the claim.


Now, having advertised for lodging of claims, the next steps that the executor is expected to perform are critical as provided for in section 45.

45. Duties of executors after expiration of period for lodging claims

(1) On the expiration of the period notified in the Gazette in manner hereinbefore in this Act provided, every such executor as aforesaid shall forthwith proceed to rank, according to their legal order of preference, all such claims of creditors against the deceased or his estate as have been lodged with him, or of the existence of which he has knowledge, and shall pay off and discharge the same so soon as the funds necessary for that purpose have been realized out of the estate.

(2) If the proceeds of such estate are found to be insufficient for the payment of all the just and valid claims of creditors to which it is liable, the executor thereof shall be liable to pay to any person having any such just and valid claim the amount which such person would have been entitled to receive in respect of such claim if ranked according to the legal order of preference, in so far as such executor has within the said period last-mentioned or afterwards at any time when he knew of the existence of such claim, paid such amount to any person the payment of whose claim against the deceased or his estate, according to the legal order of preference, ought to have been postponed until such just and valid claim as aforesaid had been satisfied; reserving always to such executor recourse against the person to whom payment of his claim may have been improperly made.

(3) When such notice to creditors as aforesaid has been duly published as aforesaid, no creditor claiming on the estate of any deceased person who has not lodged his claim with the executor within such period as aforesaid, or thereafter, before the distribution of the funds of the estate, shall in respect thereof be entitled to recover from any person having a just and valid claim as a creditor against such estate restitution of any part of such funds which may have been paid to such person in satisfaction thereof after the expiry of such period, and before the claim of the person seeking such restitution was lodged with the executor, although if lodged in due time such last-mentioned claim would, according to the legal order of preference, have been preferent to that of the person to whom such payment had previously been made; nor shall such person have any claim against any executor in respect of any such distribution as aforesaid of the funds of any such estate made by him after the expiry of such period as aforesaid, and before the claim of such person was known to such executor.

The aim is therefore to ensure that claims are ranked and paid out. It may also turn out that an estate is insolvent. Section 48 becomes relevant as follows,

48. If estate insolvent

If an executor, after inquiry, finds that the estate is insolvent he shall immediately take the necessary proceedings for having such estate placed under sequestration as insolvent, unless the creditors consent to receive a dividend in full satisfaction of their claims and proof of such consent is produced to the Master.

The aim is to ensure an orderly process of assessing, ranking and paying out claims if the funds are available. It is critical to note that the executor is also there to protect the interests of beneficiaries by not accepting frivolous or dubious claims. To that end, the powers and responsibilities bestowed on an executor are vast. S/he can even request for a solemn declaration in support of the claim as follows,


47. Executor may require solemn declaration in support of claim

(1) Any executor may, if he thinks fit, require any person preferring any claim as a creditor against the estate of which he is executor to substantiate such claim by a solemn declaration, setting forth the details of such claim with such particularity as the executor may reasonably require, and may refuse to recognize any such claim until such declaration has been delivered to him.

(2) It shall be competent for any court by which any such claim is adjudged in favour of any claimant to decline to grant such claimant his costs against the estate if such court deems that the information given by the claimant to the executor was insufficient and that the executor acted with prudence and discretion in contesting such claim.

See also, *Nyandoro and anor vs. The Master and anor*, HH-17-10.

There is recognition of the fact that some persons may not be able to lodge claims as per section 50 which reads as follows,

50. Claims by minors, absent persons and others

If any executor in administering and distributing any estate finds that any minor not having a lawful guardian or tutor, or any mentally disordered or defective person not having a lawful curator, **or any person absent from Zimbabwe and not having a lawful representative within the same, has any valid right or claim to such estate or any part thereof**, such executor shall forthwith transmit to the Master a statement in writing containing the name of such minor, mentally disordered or defective person or absent person and specifying the nature and value of the property to which such minor, mentally disordered or defective person or absent person has such right or claim.

What is critical to note is that the executor is the first adjudicating authority, in dealing with claims against a deceased estate. S/he, plays a quasi-judicial role in assisting the Master in the winding up of an estate process.

A claim that is admitted poses no challenges. However, if it is rejected wholly or partly, the executor is expected to inform the claimant of the reasons for the rejection so as to enable them to take the next course if not satisfied.

The process of objecting does not end there. Once an executor has compiled a liquidation and distribution account, it must be advertised in the government gazette and a newspaper circulating within the district that the deceased resided. More importantly, any person who has an objection is expected to lodge it within a specified period- see s52 of the act generally. If there are any objections, the Master is expected to consider these and give directions.

South Africa has a more expansive process as outlined in the Administration of Estates Act, 1965 as follows.

29. Notice by executors to lodge claims


(1) Every executor shall, as soon as may be after letters of executorship have been granted to him, cause a notice to be published in the Gazette and in one or more newspapers circulating in the district in which the deceased ordinarily resided at the time of his death and, if at any time within the period of twelve months immediately preceding the date of his death he so resided in any other district, also in one or more newspapers circulating in that other district, or if he was not ordinarily so resident in any district in the Republic, in one or more newspapers circulating in a district where the deceased owned property, calling upon all persons having claims against his estate to lodge such claims with the executor within such period (not being less than thirty days or more than three months) from the date of the latest publication of the notice as may be specified therein.

[subsection (1) amended by section 2 of Act 15 of 1978 and by section 8 of Act 86 of 1983]

(2) All claims which would be capable of proof in case of the insolvency of the estate may be lodged under sub-section (1).

31. Late claims

If any person fails to lodge his claim against any deceased estate before the expiry of the period specified in respect of that estate under sub-section (1) of section twenty-nine, he shall—

(a) if he lodges his claim thereafter and does not satisfy the Master that he has a reasonable excuse for the delay, be liable for any costs payable out of the estate, in connection with the refraining of any account or otherwise, as a result of the delay; and;

(b) whether or not he lodges his claim thereafter, not be entitled in respect of his claim to demand restitution from any other claimant of any moneys paid to such other claimant at any time or before he lodged his claim, as the case may be, in pursuance of a valid claim against the estate.

32. Disputed claims

(1) If an executor disputes any claim against the estate, he may, by notice in writing—

(a) require the claimant to lodge, in support of his claim, within a period specified in the notice, an affidavit setting forth such details of the claim as the executor may indicate in the notice; and;

(b) with the consent of the Master, require the claimant or any other person who may in the opinion of the Master be able to give material information in connection with the claim, to appear before the Master or any magistrate or Master nominated by the Master, at a place and time stated in the notice, to be examined under oath in connection with the claim.


(2) At an examination under paragraph (b) of sub-section (1), the person concerned may be questioned by the magistrate or Master before whom the examination takes place, and by the executor and any heir or the attorney or advocate acting on behalf of the executor or any heir.

(3) If any claimant fails without reasonable excuse to comply with any notice under sub-section (1), or having appeared in answer to any such notice, refuses to take the oath or to submit to examination or to answer fully and satisfactorily any lawful question put to him, his claim may be rejected by the executor.

(4) Any magistrate or Master before whom any such examination takes place shall take or cause to be taken a record thereof and shall, at the request of the executor or of the claimant and at the expense of the estate, or of the claimant, as the case may be, furnish the executor or claimant with a copy of such record.

33. Rejected claims

(1) If any executor rejects any claim against the estate, he shall forthwith notify the claimant in writing by registered post and shall state in the notice his reasons for rejecting the claim.

(2) Any Court by which any claim against a deceased estate is adjudged in favour of a claimant may decline to grant the claimant his costs against the estate if the Court is satisfied that the information given by the claimant to the executor was insufficient or that the executor was justified in rejecting the claim under sub-section (3) of section thirty-two.

What is missing in our law is what to do when an executor rejects a claim.

Application of the law to the facts and analysis

From the onset, let me discount the first respondent’s assertion that the applicant lacks *locus standi* before this court. The applicant has come to court seeking to compel the first respondent to accept the claims in a situation where the latter has rejected the claims. The issue of *locus standi* is one which the first respondent could raise in respect of the claims and not before this court. As I have indicated, the first respondent in his capacity as a quasi-judicial officer is responsible for receiving the claim and either accept or reject.

Equally astounding is the claim by the first respondent that the claim has prescribed. What triggers a claim is death, registration of an estate, appointment of an executor, granting of letters of administration and advertising of claims for and against the estate. Let me hasten to state that prescription is an issue that at first instance the executor should if so inclined deal with. The claim was made out of time but this was never raised by the first respondent. Unlike, South Africa, Zimbabwe does not have a law that deals with claims lodged out of the prescribed time frame. Essentially, this court cannot act as the executor who is fully clothed with powers as far as assessment of claims is concerned. I also discount the assertion by the first respondent that the estate of the deceased has been wound up and no order for its re-opening was sought. The final process in the administration of a deceased estate is as a matter of fact provided for in the act under the broad heading of Administration and distribution accounts as follows,

(10) When an account has been open to inspection and no objection has been lodged, or if any objection has been lodged and has not been sustained or has been withdrawn, or the person objecting has not applied to the High Court within the time prescribed the executor shall proceed to pay out the creditors and heirs and shall lodge with the Master the vouchers in support of the account.

(11) Upon the final and complete liquidation of the estate to the satisfaction of the Master the executor shall then be entitled to obtain his discharge from the Master as such executor.

The onus lay on the first respondent to prove this assertion. In any event although it is a legal issue that can be raised at any time, in my view it was central to the disposition of the matter and its mention in the heads of argument is prejudicial to the applicant.

Equally astounding is the attaching of annexures by the applicant to the answering affidavit. It is trite that a party cannot attach annexures to an answering affidavit without leave of the court - *Nashe Family Trust v.s. Chiwara and ors*, 2018(1) ZLR 212. In any event, this court cannot sit in the stead of the executor in assessing claims. This duty is reposed solely in the person of the first respondent.

In *casu*, while I have outlined the process to be followed, I can only describe the situation of the applicant as being a fortunate one because the first respondent as I have already stated, never raised the failure by the applicant to follow the procedure as outlined in the act. As a matter of fact, he ‘rejected’ the claims on the basis of lack of supporting documentation. I can therefore not non-suit the applicant on the basis of the correct procedure not being followed. I can only remark that had it been followed, the first respondent would perhaps have requested for the solemn declaration as provided for by the law.

In the *Nyandoro* matter (*supra*), part of the order sought was as follows:

1. The first and second respondents be directed not to include the applicant’s Nissan Diesel UD290 WF Horse into the estate of the late Paulino Oliveria Martins DR1308/07 estate.

A, solemn declaration had been filed and the executor declined it on the basis of insufficient details. However, the executor gave the claimant a period of 21 days within which to substantiate the claim. Further, as appears from the judgment, “On 23 July 2008 the executor wrote to the applicant’s then legal practitioners Chingeya-Mandizira indicating that the applicant’s claim had not been accepted as the claim was vague and unsubstantiated. It was after this rejection of his claims that the applicant filed the present application”. The matter was not heard on the merits because the respondents were barred. The facts are therefore distinguishable in the sense that the claimant had been given room to substantiate claim and even after they did so, still the claim was rejected.

In *casu*, the applicant seeks an order to compel the first respondent to accept the claims. The legal issue then becomes this? Is it competent to seek an order compelling the first respondent to accept the claims at all costs? This is essentially what the applicant is requesting the court to do and this is the issue that the legal practitioners missed completely. Unlike the law in South Africa, Zimbabwe does not have an elaborate procedure to deal with rejected claims or even claims that are filed late. In my view, both legal practitioners were off the mark. The applicant as evidenced by the issues identified for adjudication, approached the court in a manner of speaking seeking that this court substitutes itself for the first respondent and compel acceptance of the claim at all costs. There is a reason why an executor is clothed with full powers to receive claims and deal with them as already outlined. There is a reason for a solemn declaration being requested to substantiate the claim. The first respondent’s legal practitioners fell into the same trap by not raising this critical issue that this court is not the executor and therefore it is note the first adjudicator. The first respondent was requested by the applicant’s representative to give reasons for rejecting the claim. To that end, the letter as below becomes critical.

Our Ref: VM
Your Ref: P. Ranchhod
17 February 2023

Messer’s Ranchhod Associates
81 King George/ Natal Road
Avondale
HARARE.

Dear Sir/ Madam

RE: ESTATE LATE PHILLIP MUGADZA DR 1174/2020: ESTATE CLAIM BY JULIAN HAMILTON BARNS

We refer to the above matter and act for the executor dative of the above estate, Emmanuel Ngwarati. Your client's claim against the estate capsuled in various email correspondences between yourselves and our client and further in the letter dated 31 January 2023 has been referred to us for advice and response. Kindly note our interest.

Having gone through your client's voluminous claim and rendering our opinion to client on the same, we are instructed to advise that your clients claim against the estate for payment of various amounts listed or indicated in a document titled ‘Payments to Phillip Mugadza’ has been rejected for the following reasons.

1. No agreement established in terms of which the debt claimed is due and payable by the estate.

In terms of your email dated 14 July 2021, your clients claim is for various amounts advanced to the late Phillip Mugadza. From all the documents furnished, there is no evidence of the existence of an agreement between your client and the late Phillip Mugadza in terms of which the alleged amounts of money now claimed were advanced and now due for payment by the estate.

The claim has been placed before the beneficiaries of the estate and none of them is aware of this alleged debt. Without written documentary evidence in the form of an agreement detailing the terms and conditions under which the sums claimed were advanced, we regret to advise that such claim remain unknown to the beneficiaries and cannot be authenticated or accepted.

Notwithstanding the above, a perusal of the documents supporting the claim shows that the reason for certain payments allegedly made is far from lending of money agreement as claimed by your client. They rather reveal some other purposes, namely;

1) Consultancy fee (see Banc ABC statement dated 25.02.15)
2) Funding assignment at ABC Debt Security (see Banc ABC statement dated 08.1 3) Payment of Fees (see Banc ABC statement dated 30.04.15)
4) Payment of Charitable payment (see Banc ABC statement dated 23.05.17)

It is therefore doubtful whether there was any lending/ advancing of money agreement as alleged by your client. Your clients claim in the circumstances remains suspicious.

2. Certain amounts claimed not made by your client and some not paid to the late Phillip Mugadza.

A reading of the supporting documents to your clients claim shows that certain payments were made by Kariba Resources Limited and by one Alison Woodman. In some instances, the recipient of such monies was not the Late Phillip Mugadza but ones Russel Goreraza, Market
 Giants (Put) Ltd, Thomas Gono, 'daughter', Gasa, Nyamadzawo & Associates and Theresa Thokozile Kuuya.

In the circumstances, such claims ought to be independently brought by Kariba Resources Limited and one Alison Woodman. Equally so, claims with recipients who is not the late Phillip Mugadza cannot be addressed to the estate.

With regards to the other Western Union documents, apart from the fact that they are not stamped, there is no corresponding evidence that show that the late Phillip Mugadza indeed received the monies.

3. Claim prescribed at law

In any event, and all things considered, the majority of the claims made if not all of them from 28 May 2013 right up to 31 October 2018 has since prescribed at law.

In the result, it is for these reasons tabulated above, cumulatively considered, that your clients claim has been rejected.

We advise accordingly.

Yours faithfully

V Mkwachari

T.H Chitapi & Associates cc Master of the High Court (DR 1174/2020) cc Client

In my view, reasons for rejecting the claims were indeed given to the applicant. Whether they are adequate or not is neither here nor there. The order sought is akin to asking this court to step into the shoes of the first respondent and literally force the acceptance of the claims, as if to ask this court to now act as the executor. The clear process already outlined, requires a consideration of all claims one by one and if not satisfied, a request for a solemn declaration. Even the issues related to whether or not the debts are for a company or individual are dealt with at this stage. It requires that the first respondent makes a decision on all claims whether accepting or rejecting. If rejecting he is required to give reasons. But the applicant is not even seeking that the decision of the first respondent to reject the claims be set aside. All he wants is that the first respondent be compelled to register him as a creditor. Not only that but a secured creditor. How can that be when it is not even known how many other creditors are there? What is the legal basis for the applicant to be a secure creditor when that process can only be done by the executor who after receiving claims can rank them through the final liquidation and distribution account and pay out accordingly if the estate is solvent?. The applicant wants this court to put all the claims under a microscope and literary force the first respondent to accept them. All these questions and issues can only lead to one logical conclusion. This court cannot be substituted for the executor. I dare state that the application is akin to one for review disguised as a court application to compel. It is clearly incompetent.

DISPOSITION

The issues raised in this matter are critical to the law of succession. Had all the legal practitioners applied their minds, perhaps they would have been more helpful to the court. Because they did not, this impacts on the order of costs. The most appropriate order is that each party should meet its own costs.

1. The application be and is hereby dismissed.
2. Each party will bear their own costs.

Devittie, Rudolph and Timba, applicant’s legal practitioners

T.H Chitapi and Associates, first respondent’s legal practitioners
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