Salma Ebrahim v Estate Late Basheer Ahmed Ebrahim and Attiya Ebrahim and Murtle Matilda Shenaaaz Ebrahim and Ayyaz Ebrahim and Tecs Haulage (Pvt) Ltd and The Master of the High Court N.O.

### Preamble
1
HH 437-18
HC 5607/18
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SALMA EBRAHIM

versus

ESTATE LATE BASHEER AHMED EBRAHIM

and

ATTIYA EBRAHIM

and

MURTLE MATILDA SHENAAZ EBRAHIM

and

AYYAZ EBRAHIM

and

TECS HAULAGE (PVT) LTD

and

THE MASTER OF THE HIGH COURT N.O.

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 25 June and 3, 5, 11, 16 & 17 July 2018

Urgent Chamber Application

L. Uriri with him T. Nzombe and A. Dururu, for the applicant

P. Nyeperayi with him B. Dhlakama, for the 1st and 2nd respondents

K. Kanyemba, for the 3rd and 4th respondents

ZHOU J: This is an urgent chamber application in which the applicant seeks the following relief which is contained in the draft provisional order:

“FINAL ORDER SOUGHT

It is ordered that:-

The respondents in solidioum be and are hereby interdicted from entering into or sanctioning any sale or transferring, disposing (of?) or dealing in any other way with the property of the Estate Late Basheer pending judgment of this court in HC 2669/17.

Respondents to pay costs of suit.

INTERIM ORDER SOUGHT

The applicant is granted the following relief:

The directive of the 5th respondent being the Master of High Court authorising the sale and disposal of the property in 4th respondent (sic) be and is hereby suspended.”

Despite numerous concerns previously expressed by this court about the failure by legal practitioners to comply with the form of the provisional order prescribed by the rules of this court, the draft provisional order recited above shows no attempt to do that. Some legal practitioners appear to have problems with undertaking the simple task of just copying the relevant portions of Form 29C. The result is that both the interim relief and final relief appear to be final in their effect. Basic things such as reproducing the subheadings in Form 29 C seem to present problems to some practitioners as illustrated by the present case.

Be that as it may, in order to protect the litigant from the potential consequences of her legal practitioner’s lack of diligence the court has to turn a blind eye to such tardiness and consider the matter on its merits.

The background facts to this application are as follows. The applicant is a daughter of the late Basheer Ahmed Ebrahim and beneficiary to the estate of her late father. The citation of the parties in the papers is not consistent. Attiya Ebhrahim, a sister of the applicant, is the Executrix Dative of the Estate of the Late Bashher Ahmed Ebrahim. In some papers she is cited as the first respondent while in others she appears as the second respondent. She is also a beneficiary in that Estate. There are two other beneficiaries who are cited as respondents. These are Murtle Matilda Shenaaz Ebrahim and Ayyaz Ebhrahim.

The administration of the Estate of the Late Basheer Ahmed Ebrahim appears to have generated animosity and mistrust between the applicant and the other beneficiaries. On 6 April 2017 the applicant applied for and was granted a provisional order in case No. HC 2668/17. The interim relief granted in that provisional order is that all prospective sales or sales of movable or immovable assets belonging to the deceased or companies in which the deceased was a shareholder made without the consent of the Master of the High Court in terms of the Administration of Estates Act [Chapter 6:01] be stayed. The Registrar of Companies and Registrar of Deeds were ordered to avail the files of any companies or deeds owned by the deceased estate in order to facilitate the winding up of the estate. The final order sought is for, inter alia, a declaration that all prospective sales and sales of assets belonging to the deceased estate which were made without the consent of the Master of the High Court are null and void. The final order also prays for the removal of Attiya Ebrahim from Executrix Dative.

The applicant states that the instant application is founded on the decision of the Master of the High Court which was served upon her on 14 June 2018. But the applicant has not challenged that decision by the Master which was communicated through that letter which is dated 11 June 2018. In fact, the relief which is sought both in the interim and as final relief is not being sought pending any challenge to that letter. Instead, the final relief of the provisional order is being sought pending determination of Case No. HC 2668/17.

The sale which the applicant seeks to have stayed was authorised by the Master in accordance with the terms of the provisional order granted in HC 2668/17. The effect of the relief being sought in casu is to interdict a lawful exercise of powers. The applicant’s complaint seems to be that there should be no sale of any assets of a company in which the deceased held shares until she has completed an audit which she was authorised to undertake by the Master and to which the other beneficiaries consent. But the sale, which is meant to realise proceeds to settle some of the company’s debts does not in any way prejudice the audit or valuation of the assets of the estate. Obviously whatever proceeds would be realised from the sale would be accounted for by the executor who works under the supervision of the Master of the High Court.

The allegations of collusion between the Executor and the other beneficiaries to prejudice the State are not established on the papers.

The effect of the order being sought in casu is to review the terms of the provisional order by which a sale of the assets of the deceased Estate or companies in which the deceased had an interest could be undertaken as long as the Master consented thereto. The instant case seeks to prevent sales authorised by the Master in the absence of any proceedings seeking to impeach the Master’s consent to the sale as communicated through the letter of 11 June 2018. That relief is not sustainable on the papers.

In all the circumstances of this case, the application cannot succeed.

In the result, the application is dismissed with costs.

Dururu & Associates, applicant’s legal practitioners

Dhlakama B Attorneys, 1st respondent’s legal practitioners

Chitewe Law Practice, 2nd & 4th respondent’s legal practitioners