Richard Mamutse and Piniel Mamutse v Obram Trust Company and The Master of the High Court and Heather Danai Matimadii and Tendai Prince Hilary Matimadii

### Preamble
1
HH 527-17
HC 6902/16
---------


RICHARD MAMUTSE

and

PINIEL MAMUTSE

versus

OBRAM TRUST COMPANY

and

THE MASTER OF THE HIGH COURT

and

HEATHER DANAI MATIMADII

and

TENDAI PRINCE HILARY MATIMADII

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 23 May, 12 July 2017 & 16 August 2017

Opposed Application

Ms L Gaba, for the applicant

E Ngwerewe, for respondent

CHAREWA J: The applicants filed an application for review seeking an order nullifying the sale of a property being Stand 1249 Rugare Township, Harare which was sold in the administration of the Estate Late Shingirai Mamutse DR No. 1421/15. At the conclusion of the parties’ submissions on points raised in limine I handed down an ex tempore judgment dismissing the application with costs on a legal practitioner and client scale.

The applicant having requested for written reasons for the judgment, these are they. The facts and background

Pursuant to the death of Late Shingirai Mamutse, the second respondent appointed a Mr Isaac Tichareva the Executor Dative of her estate. In the exercise of his duties Mr Tichareva sold the estate immovable property being Stand 1249 Rugare Township to the third and fourth respondents to settle the claims of the estate creditors. Aggrieved by this action, the applicants instituted this application for review on the grounds that

1st respondent was an interested party to the sale or was motivated by bias, malice or corruption.

2nd respondent misdirected himself by authorizing the sale without conducting a hearing with the beneficiaries; and

2nd respondent authorized the sale without making a due inquiry in terms of the law.

Parties’ submissions

At the hearing of the matter, respondents raised the preliminary points that

The 1st respondent was wrongly cited as it was not the executor of the estate, who was consequently, not cited.

The applicants failed to serve their application 3rd and 4th respondents, service having been effected on 1st respondent which had no mandate to represent them, an error which, despite being drawn to applicants’ attention, they failed to rectify; and

Finally, that the remedy sought, viz; “to set aside the sale proceedings”, rather than to set aside the sale itself, is incompetent as it is incapable of enforcement.

These challenges having been drawn to the applicants’ attention, who obdurately continued to pursue the application, respondents sought dismissal of the application with costs on the higher scale.

In response, applicants conceded that while they were aware that the executor of the estate is in fact Isaac Tichareva, in his personal capacity, rather than first respondent, they relied on letters with first  respondent’s letterhead that were used in communication about the estate. Further, applicants submitted, since some of the letters were written under the signature of one Oliver Masomere, the managing director of first respondent, this confirmed applicants belief that first respondent was administering the estate, and not Isaac Tichareva.

Further, applicants explained their failure to effect service of their application on third and fourth respondents on the basis that they never saw them and only learnt about these respondents from a letter from first respondent. This, they submitted, justified their effecting service on third and fourth respondent upon first respondent.

Finally, applicants affirmed that the order they seek is nullification of sale proceedings as it is these defective proceedings which led to the outcome-the sale.

Reasons for judgment

Having read the heads of argument and listened to the parties’ submissions, I was of the view that I really had no option but to uphold the points in limine.

Clearly the citation of first respondent was improper as it was never appointed the executor dative of the deceased estate. The proper person to cite was Isaac Tichareva, the properly appointed executor dative. It is trite that a deceased estate is represented by, and is sued or sues through the executor. To argue otherwise is puerile.

That communication on the estate was on first respondent’s letterhead and or was signed by some of first respondent’s functionaries or that the executor may have acted through the first respondent or its employees did not make first respondent the executor dative or permit that it should now act for or on behalf of the estate. At best, this may amount to negligence, improper conduct or dereliction of his duties by the executor, but no more.

In fact, this should have actually strengthened applicant’s case against Isaac Tichareva for improperly administering the estate through persons whom he had not given power of attorney to act on his behalf, and who were not authorised by the second respondent to carry out the estate administration. But this certainly did not clothe first respondent or those individuals with the authority to be sued as executors or in the place of the executor.

It is so obvious from the letters of administration who the executor is that the applicants were clearly misguided to sue first respondent merely on the basis that letters were written on its letterheads or that its employees were used to carry out some aspects of the administration of the estate. Certainly such letters do not override the power vested in the executor dative through the appointment made by the second respondent.

Secondly, I certainly do not accept the argument that service on first respondent was effective service on third and fourth respondents, more particularly when applicants were informed that first respondent does not act for them. I would have thought that as soon as applicants’ legal practitioners received that information they would have made the necessary inquiries to ascertain third and fourth respondents address of service. In fact, since third and fourth respondents had bought the estate property, it would have made a bit more sense to at least effect service thereon. At any rate, a simple check on the agreement of sale in the Master’s office would have elicited the third and fourth respondents’ address for service.

Consequently, third and fourth respondents are not in default. They were not served with process, and hence did not file any pleadings and or attend the hearing. There is nowhere in the record that applicants aver or show that these respondents gave any authority for first respondent to represent them or for the legal practitioners of first respondent to receive service on their behalf. Applicants’ legal practitioners were simply either negligent or incompetent in the execution of their mandate.

By the same token, even though first respondent did not raise this, no proof of service on the second respondent exists on the record nor is there any explanation from applicants for this failure despite the fact that second respondent’s address for service is well known by every lawyer worth his/her salt. Yet this is the office whose conduct the application for review largely seeks to impugn as it was responsible for appointing the executor and for authorising the sale of the estate property. Such negligence by applicants’ legal practitioner can only be classified as gross.

Finally, when I looked at the draft order in my preliminary reading of the record, my first take was that it needed attention. It cannot be proper to request the court to set aside the proceedings that led to the outcome while leaving the outcome in situ. Rather, it is the outcome that must be set aside for the reason that the proceedings that led to it were not above board.

I am therefore of the view that the points in limine were well taken and find that the application must fail.

Costs

I must state that I find the level of appreciation of procedure and the law by applicants’ legal practitioner so abysmal that had the request been made, this is a case where I would have awarded costs de bonis.

Upon being informed of the challenges in the citation of the parties, the service of process and the relief sought, any diligent legal practitioner with the minimum of skills would not have proceeded with the application, but would have sought amendments or withdrawn the application. That would have been the proper thing to do rather than to proceed with a clearly defective application.

For these reasons, and, for being dragged to court on badly drawn and improperly served pleadings despite this being drawn to applicants’ notice, first respondent is certainly entitled to its costs on the higher scale.

It is quite unfortunate that the applicants have to be saddled with higher costs arising out of errors mostly to do with the nature and quality of legal representation they received.

Disposition

In the premises, it is ordered that the application be and is hereby dismissed. The applicants to bear first respondent’s costs on the legal practitioner and client scale.

Takawira Law Chambers, applicant’s legal practitioners

Chatsanga & Partners, 1st respondent’s legal practitioners