Tonderayi Gabriel Mugabe v Bona Nyemudzai Ouma Mutsahuni (In her capacity as Executrix Dative to Estate Late Robert Gabriel Mugabe DR 2703/19) and Master of the High Court (N.O.)

### Preamble
1
HH 459 - 25
HCHF 449/25
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TONDERAYI GABRIEL MUGABE

versus

BONA NYEMUDZAI OUMA MUTSAHUNI

(In her capacity as Executrix Dative to Estate Late Robert Gabriel Mugabe DR 2703/19)

and

MASTER OF THE HIGH COURT (N.O.)

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE; 3 May & 31 July 2025

Opposed Matter – Condonation

T.M Muzenda, for the Applicant

ABC Chinake, for the first Respondent

No appearance for the 2nd Respondent

MAXWELL J:    The Applicant approached the court seeking to be condoned for seeking the review of the Master’s decision to confirm the account and close Estate Late Robert Gabriel Mugabe DR 2703/19 pending the determination of his claim against the estate by the first Respondent out of time.

Background

The factual background of the matter is outlined in the Founding Affidavit to the Draft Application for Review. Applicant stated that he gathered that he was born on 20 April 1977 in Chimoio, Mozambique to one Hilda Maeka, having been fathered by the late Robert Gabriel Mugabe. He stated that his parents met in Zimbabwe after independence and for reasons unknown to him, his father did not want it to be disclosed to the public that Applicant was his son, until at a later stage. His mother passed away before the disclosure. Applicant alleged that he would meet his father occasionally but that was maintained a secret to the first family. He was however in contact with his father’s siblings such as Bridget Mugabe.

He further alleged that his father passed away before he was formally introduced to the Mugabe family. The estate was advertised and he notified the Respondents about his claim and the fact that he was the deceased’s son. The first Respondent’s erstwhile legal practitioners requested for a DNA Test. The DNA tests confirmed that he was born of the Mugabe parental lineage. Through a Notarial Deed of Change of Name, he changed his name from Tonderayi Maeka to Tonderayi Gabriel Mugabe. He approached the first Respondent and her lawyers but was not entertained. On the 2nd of June 2023, he then learnt that the estate was closed on 18th of December 2020 by confirmation of the account. He attempted to obtain a declaratory order for the reopening of Estate Late Gabriel Mugabe under case number HCH 3729/23 but was not successful. He withdrew the application under HCH 3729/23. The present application was then filed on 3 February 2025.

Applicant stated in the Founding Affidavit of the present matter that he is outside the time framework as provided for in both the Administration of Estates Act [Chapter 6:01] and the High Court Rules SI 202/2021. He averred that there is good cause for the court to extend the time allowed for him to file his application for review.

The Law

The factors the court considers in deciding whether to grant condonation are stated in numerous cases. These are;

The degree of non – compliance

The explanation thereof

The prospects of success

The Respondent’s interest in the finality of the case

The convenience of the court; and

The avoidance of delay

See KM Auctions (Pvt) Ltd v Adanesh Samuel & Anor SC 15/12. Also in Forestry Commission v Moyo 1997 (1) ZLR Gubbay CJ (as he then was) captured the requirements as follows:

“That the delay involved was not inordinate, having regard to the circumstances of the case;

That there is a reasonable explanation for the delay;

That the prospects for success should the application be granted are good;

The possible prejudice to the other party should the application be granted.”

See also Hove v Berea Mining Syndicate SC 50/23; Herbstein & Van Winsen – The Civil Practice of the Supreme Court of South Africa 4th ed at p897.

After considering these factors, I came to the conclusion that condonation is not warranted in this case. My reasons are as follows:

The degree of non – compliance and the explanation thereof

The Master’s decision sought to be impugned was made on the 18th of December 2020. The present application was filed on the 3rd of February 2025, a period in excess of four (4) years. The explanation given has a lot of unexplained gaps. Applicant stated that he lodged his claim with the Respondents on 9 December 2019. He thereafter learnt of the confirmation of the closure of the account for the Estate Late Robert Gabriel Mugabe in June 2023. He does not give specific details of his activities between December 2019 and June 2023. Whilst he stated the date he withdrew the application for a declaratur, he does not give the date it had been filed. He withdrew the application for a declaratur on 24 January 2025. He stated that the withdrawal of the application for a declaratur paved the way for the present application.

It is trite that in an application for condonation where there is no acceptable explanation for some periods of delay and no explanation at all in respect of other periods of delay, the application should not be granted whatever the prospects of success may be. See PE Bosman Transport Works Committee & Ors v Piet Bosman (Pty) Ltd 1980 (4) SA 794 referred to in the case of Willow Creek Farm (Pvt) Ltd t/a Willow Transport v Deven Engineering HH 37/2004. Applicant was not candid with the court. He did not provide sufficient details of the period between when he allegedly lodged his claim with the Respondents to the time he filed the present claim. His focus seems to have been on the period between withdrawing the application for a declaratur and the present application. Erroneous proceedings are not an excuse that prevents the running of the time within which the application for review is to be filed.

I find that the delay is inordinate, and the explanation given for it is not satisfactory.

(2) The prospects of success in the review application

Applicant seems to base his case on the annexures he attached to the application. It is necessary to consider each of them.

Annexure A was deposed to in February 2020, after the death of the Late Former President Robert Gabriel Mugabe. It refers to the Applicant as Tonderayi Maeka, and later as Gabriel Tonderayi Mugabe. The deponent stated that the Applicant is the son of Robert Gabriel Mugabe.

Annexure B was deposed to on 29/9/23 also after the death of the Late Former President Robert Gabriel Mugabe. The deponent stated that he accepted the Applicant into the Mugabe family as he is now the father figure of the family by virtue of being the oldest son in the family.

Annexure C is a letter written by the Applicant to the Master of the High Court laying out his claim. It is surprisingly dated 9 December 2017. It was stamped 9 December 2019 in the Master’s Office. It is not clear if the letter was written before the deceased met his demise but was submitted after his death.

Annexure D is a letter from the Master’s Office advising the Applicant that;

“Regrettably, in the absence of a birth certificate confirming your position we are unable to automatically consider you as such …..”

The letter was written on 11 December 2019.

Annexure E is a letter from Applicant’s legal practitioners advising the Executrix Dative of their client’s position. They stated that Applicant was taking steps towards acquiring the requested document i.e. a Birth Certificate with the surname “Mugabe”. The letter is dated 5 November 2020.

Annexure F is a DNA Siblingship Report. Applicant was tested as Tonderayi Maeka. The sibling tested with him is Lawrencia Mugabe who stated in Annexure A that she was born to “Tete Bridget”. The DNA tests were not done involving the deceased’s children. It is not clear from what family Lawrencia was born and whether or not the test proved that Applicant belongs to the family in which Lawrencia was born.  Traditionally, “Tete Bridget” would not be married to a member of the Mugabe family, as she herself is of that family. It is therefore questionable if her children can assist in proving that one is a member of the Mugabe family.

Annexure G is a birth certificate which shows that it was registered on the 20th of September 2022. It is clear that it is a re – registration of a birth as the portion for “Names added or altered after registration” has the following:

“Former First Name	Tonderayi

Former Surname	Maeka”

The birth certificate does not contain the details of the father of the child.

Annexure H is a national registration of the Applicant after assuming the surname Mugabe. It was issued on the 13th of October 2022.

None of these annexures take the Applicant’s case anywhere. It is common cause that Applicant was born out of wedlock. From Annexure G it is clear that he obtained a birth certificate with the surname “Maeka”. Annexure A and B would have assisted the Applicant in obtaining a birth certificate reflecting the Late Former President Robert Gabriel Mugabe as his father if he had no other birth certificate. Section 12 of the Births and Deaths Registration Act [Chapter 5:02] allows the registration of a child born out of wedlock.

“(c) If the alleged father of the child is dead upon the joint request of the child’s mother and a parent or near relative of the alleged father”

It is evident that this process only applies to the registration of a birth in the first instance. The law does not allow a near relative to come forward and acknowledge paternity on behalf of a father in circumstance as in this case, where a birth certificate was issued without the father’s details. The inclusion of the father’s details on a birth certificate is proof of acknowledgement of paternity. The exclusion therefore when the birth certificate was obtained during the lifetime of the alleged father is a clear indication that paternity was not acknowledged.

As stated in Mkundu v Manyonda & Ors HH 262/25 re – registration of birth is governed by section 19 of the Births and Deaths Registration Act [Chapter 5:02]. It can only be conducted where the status of a child is to be changed from being born out of wedlock to born in wedlock. Section 19 does not allow the re – registration of a birth of a child born out of wedlock whose parents never married and whose father is late. Applicant did not state that his mother ever married the late former President Robert Gabriel Mugabe. That may be the reason why, even though the Births and Deaths Registration office might have bowed to the pressure of the name, they did not go as far as to reflect the details of the alleged father on the birth certificate.

Applicant seems not to have understood the request by the Master’s Office in Annexure D to obtain a birth certificate confirming his position. It is not simply a matter of having a surname, but of having a birth certificate confirming that the alleged father is indeed the father as claimed. Such confirmation would have been if the tendered birth certificate had the details of the father of the child. Annexure G and Annexure H therefore, though they have the surname “Mugabe”, are no different from the birth certificate with the surname “Maeka”. None of the documents confirms who the father of the child is.

Annexure F also takes the matter no further. Whilst it confirms that Applicant is a sibling of the other person tested, it does not show paternity. What it shows is that he might have been sired by one of the males related to the person who was tested.

For the above reasons, I find that Applicant has not discharged the onus of proving that he was entitled to benefit from the estate of the Late Robert Gabriel Mugabe. There is no reason to allow the re – opening of Estate Late Robert Gabriel Mugabe DR 2703/19. No basis has been laid to justify reviewing the Master’s decision to confirm the account and close the estate. The balance of convenience favours the dismissal of this application as the deserving beneficiaries of the Estate Late Robert Gabriel Mugabe would be greatly prejudiced by the reversal of a process that was completed more than four years ago.

Disposition

The application for condonation of late filing of an application for review be and is hereby dismissed with costs.

Hungwe & Associates, Applicant’s legal practitioners

Kantor & Immerman, first Respondent’s legal practitioners