Clever Mandizvidza v Henrietta Nyanyiwa & 3 Ors

### Preamble
Judgment No. SC 128/22
1
Civil Appeal No. SC 186/22
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REPORTABLE:	    (112)

CLEVER     MANDIZVIDZA

v

HENRIETTA     NYANYIWA     (2)     MASTER     OF THE     HIGH     COURT     (3)     EDDIES     PFUGARI (PRIVATE)     LIMITED

(4)     E     PFUGARI     PROPERTIES     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MATHONSI JA & CHATUKUTA JA

HARARE: 27 SEPTEMBER 2022 & 17 NOVEMBER 2022

T. Magwaliba with T. Mapuranga, for the appellant

E. Mubaiwa, for the first respondent

No appearance for the second, third and fourth respondents

MATHONSI JA:	On 23 March 2022, at the instance of the first respondent who was challenging the decisions of the Master of the High Court to confirm interim liquidation and distribution accounts in respect of the Estate of the Late Edward Nyanyiwa, the High Court (“the court a quo”) issued the following order:

“IT IS ORDERED THAT:

The first respondent’s decision to confirm the second respondent’s interim liquidation and distribution accounts in the estate of the late Edward Nyanyiwa under DR Number 471/19 be and is hereby set aside.

The interim liquidation and distribution accounts filed by the second respondent in the estate of the late Edward Nyanyiwa under DR 471/19 be and are hereby set aside.

The second respondent be and is hereby removed from the position of executor dative for Estate Edward Nyanyiwa DR 471/19.

The first respondent shall within ten days of being served with this order appoint an impartial person to carry out a valuation of the shares held by the late Edward Nyanyiwa in all the companies that the estate has interests in.

It is hereby declared that the executor for Estate late Edward Nyanyiwa shall charge his fees at five percent (5%) of the gross value of the estate,

The costs of this application shall be borne by the second respondent.”

This appeal is against that entire judgment of the court a quo.

THE FACTS

The late Edward Nyanyiwa (“the deceased), who died intestate on 10 February 2019 was an enterprising man indeed. Eking a living in the business of property development, he ran a vast empire through the medium of not less than twelve companies in which he held shares. On 21 March 2019, the appellant was appointed as the executor dative of the deceased’s estate and soon came on a collision course with some of the beneficiaries of the estate including Henrietta Nyanyiwa, the first respondent herein who is the daughter of the deceased. The second respondent is the Master of the High Court (“the Master”), who among other duties, is charged with the fiduciary duty of supervising the administration of deceased persons’ estates.  The third and fourth appellants are companies in which the deceased held shares.

In the course of administering the estate, the appellant commissioned the “valuation of assets (movable and immovable)” owned by all the companies in which the deceased had a stake. For that exercise, the appellant engaged the services of Rawson Properties, which duly undertook the exercise on an urgent basis as instructed by the appellant.

On 27 January 2020, the appellant lodged the first interim liquidation and distribution account for the estate with the Master. It was in respect of property owned by one of the companies in which the deceased held shares. Thereafter the appellant prepared and lodged twelve more liquidation and distribution accounts for the properties of each of the companies where the deceased had shares. In doing so, the appellant was not accounting for the value of the deceased’s shares but the value of the entire property of each company.

In respect of each account, the appellant would levy his remuneration on capital assets at ten percent of the value and levy a further five percent of the gross value of the same assets. A couple of examples should suffice to demonstrate how the appellant’s methodology affected the estate and its beneficiaries.

In respect of the liquidation and distribution account for proceeds of the sale of interests held in The Square Loft (Private) Limited which amounted to US$230 000.00, the appellant charged the estate fees in the amount of US$34 500. 00 while awarding an amount of US$22.22 to the deceased’s senior surviving spouse and US$11.00 each to the surviving children.

In another liquidation and distribution account concerning Stonerise (Private) Limited, the appellant proposed a fee and remuneration of US$96 000.00 for himself while proposing an award of US$142 222.22 for the deceased’s senior surviving spouse and US$71 111.11 for each of the surviving children.

It suffices to simply mention that numerous challenges and questions were raised against the appellant’s valuations and conduct by both the beneficiaries of the estate and their legal practitioners. By letter dated 10 February 2020 the appellant responded to these complaints. In essence, he stated that he had relied on the provisions of s 6(1)(g)(iii) of the Estate Duty Act [Chapter 23:03] (“the Estate Duty Act”) to determine the value of the deceased’s shares in the companies as the equivalent of equity in the companies. He also heavily relied on the Estate Administrators (Registration and Examination) (Amendment) Rules, 2017 (No.3) (“S.I. 50 of 2017”) as well as the Estate Administrators (Registration and Examination) (Amendment) Rules, 2017 (No.4) (“S. I. 59 of 2018”) to justify his fees and remuneration.

Incensed by the appellant’s conduct in the administration of her late father’s estate, the first respondent lodged an objection to the confirmation of the interim liquidation and distribution accounts with the Master on 25 August 2020. She contended that the ten percent that the appellant was charging on the capital assets was not chargeable on those assets as the appellant had not “brought them to account”. Part B of S.I. 50 of 2017 provides that an executor is entitled to remuneration of 10 percent on the capital assets of the deceased “brought to account” by him. In that letter, which was authored by her legal practitioners, it was concluded thus:

“In our view you are also obligated to make a decision on the executor’s suitability to continue in that capacity in respect of this estate in line with section 117 of the Administration of Estates Act. We will accordingly be filing a detailed complaint giving full reasons why it is our considered view that the executor is not acting in the interests of the estate.”

In another letter dated 9 September 2020, the first respondent lodged another complaint with the Master in terms of s 116 of the Administration of Estates Act [Chapter 6:01] (“the Act”).  She requested the Master to enquire into the conduct of the appellant so that, in turn, he could apply for the removal of the appellant to a Judge of the High Court in terms of s 117 of the Act. That letter partly read as follows:

“RE: ESTATE LATE EDWARD NYANYIWA: DR 471/19

...

Mr Mandizvidza has been overcharging the estate for his services, and intends to continue doing so as is apparent from the interim distribution accounts already filed.

The executor charged a standard 5% executor’s fee and went further to charge another 10% on what he described as capital assets of the estate.

Firstly, the relevant statutory instrument does not provide a fee of 10% simply because one is dealing with capital assets but those that would have been brought to account by the executor.

Secondly, the immovable properties that the executor sold, and still intends to sell as per his interim accounts, do not belong to the estate or deceased personally but to companies that he held shares in such that they cannot be described as capital assets of the estate.

Thirdly, and more importantly, the executor did not even bring or cause any of those capital assets to be brought to account as all such assets especially the companies that own them, were always known and would have required no more than the standard deeds search to properly identify them.

...

In the circumstances, please let us have your written undertaking that an inquiry into the suitability of the executor in question will be held at your earliest convenience and that the fact will be communicated to the said executor before the end of the week to address the concerns raised herein. Should you fail to do so, we will be obliged to approach the High Court for an order compelling you to do so.

Yours faithfully,

SAWYER AND MKUSHI”

The Master responded to the appellant’s letter of 9 September 2020 by letter dated 5 October 2020 and his decision is contained in the second paragraph of that letter:

“Having considered the contents of the said letter and the response from the executor, dated 24 September 2022, we advise that we are not persuaded by your grounds for removal of the executor from office. We shall therefore not be proceeding in terms of section 117 of the Administration of Estate Act [Chapter 6:01].”

The Master considered the fees to accord with S.I. 50 of 2017 as amended by S.I. 59 of 2018. He reasoned that the appellant brought to account the deceased’s assets by “way of lodging an executor’s inventory where he/she will be accounting for such assets  as being owned by the deceased.” The Master agreed with the appellant’s valuation of the deceased’s shareholding in terms of s 6(1)(g)(iii) of the Estate Duty Act. In any event, so the Master reasoned, it was improper for the first respondent to seek to challenge the appellant’s valuations when no objections were made to two other valuations that had since been confirmed.

On 13 October 2020, the Master responded to the appellant’s other objection of 25 August 2020. He refused to revisit the issue of the propriety of the distribution accounts that had already been confirmed, preferring to hold that he was now “functus officio with regards to the circumstances leading to the confirmation of those accounts”. He also refused to assess the fairness and reasonableness of the fees that were charged by the appellant on the estate stating;

“With regards to the executor’s entitlements, we believe this is a matter that is clearly provided for in terms of the relevant Statutory instruments. With all due respect, we do not believe that the Master has power to override a clear legal provision on the basis of fairness and reasonableness of the fees. We believe in coming up with those fixed charges the legislature had taken all such considerations into account.”

PROCEEDINGS BEFORE THE COURT A QUO

Having found no joy in her challenge of the distribution accounts and the removal of the appellant through the Master, the first respondent approached the court a quo for relief. She filed an application for an order setting aside the interim liquidation and distribution accounts that were filed by the appellant with the Master and for an order for the removal of the appellant as executor of the estate. The first respondent challenged the appellant’s valuation of the assets owned by the company, the fees that were charged by the appellant on the estate and the appellant’s overall administration of her father’s estate on strong grounds. She averred that the appellant “far exceeded his authority in the administration of the estate and does not consider himself to be answerable or accountable to the beneficiaries.” Accordingly, the appellant sought the relief aforesaid.

The Master filed a report in accordance with Order 32, r 248 of the repealed High Court Rules, 1971. He denied being biased and partisan, of course, maintaining his position that the appellant was entitled to levy a charge of ten percent on what he described as “capital assets”. With much assertiveness, the Master took the view that he was precluded from exercising discretion in terms of s 56 of the Act in respect of the reasonableness of the fees charged because it would have been “tantamount to usurping the powers of the legislature which action is clearly unconstitutional and ultra vires the law”.

Considering that the first respondent had not challenged the first two distribution accounts submitted by the appellant, the Master reported that the first respondent was acting inconsistently and in bad faith. Having said so much against the application, the Master retorted in the end that he would abide by the decision of the court.

For his part the appellant also put up a spirited resistance to the application virtually denying all allegations against him. Quite to the contrary, he asserted that all his actions were above board. In his view he had been relentlessly patient and courteous to the warring beneficiaries of the estate.

In his opposing affidavit, the appellant insisted that he had levied his fees in accordance with the applicable regulations. Likewise, the interim accounts he drew up had been done in accordance with the Estate Duty Act. He asserted that the process of identifying, valuing and accounting for capital assets was part and parcel of “bringing to account”. According to the appellant, the regulations admitted no room for his discretion and the leviable fee of ten percent on capital assets and five percent on gross assets would not change simply because the estate had a single asset which was a capital asset. The appellant was adamant that:

“It is common cause that beneficiaries will only benefit or inherit the residue after payment of estate obligations. Executor’s fees cannot be reduced simply because the beneficiaries have very little residue to inherit from. There is no law providing for such.”

Regarding the valuation of the assets owned by the companies in which the deceased had a shareholding, instead of valuing the shares therein, the court a quo found that the appellant simply had to “establish the value of the deceased’s shares in those entities”. It found further that the appellant’s approach to the contrary was a basic error. Additionally, the appellant had failed to act in accordance with the clear guidance availed by s 6(1)(g) of the Estate Duty Act. In this regard, it was found that there was no valuation of the shares at all by an impartial person appointed by the Master as required by the law.

On the aspect of the appellant’s fees, the court a quo made the finding that the appellant could not be said to have brought any capital assets to account in respect of which he would be entitled to a ten percent fee in terms of S.I. 50 of 2017. In that regard, it castigated the Master for “having no appreciation” of his role in so far as it pertains to the fees or remuneration charged by an executor. In its view, the Master had the power to assess the reasonableness of the fees charged by the appellant. Thus, the Master’s outright refusal and failure to do so constituted an irregularity that justified the setting aside of the confirmation of the accounts. Following its own assessment of the fees, the court a quo found them to be unreasonable.

On the appellant’s conduct, the court a quo stated;

“the brazen attitude displayed by the second respondent (the appellant herein) as he went about disposing of the estate’s assets with the first respondent’s consent and approval in the face of court challenges as well as (the) partisan approach adopted by the first respondent in the face of what, with respect, is an obvious misinterpretation of the law, coupled with the obvious mistrust of the executor in this case, makes a very good case for his removal”

After making these findings, the court a quo issued the order set out above which included the removal of the appellant as the executor dative of the estate.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the judgment of the court a quo, the appellant noted an appeal to this Court originally on six grounds of appeal, four of which were abandoned at the commencement of the hearing leaving the following two grounds;

The Court a quo erred in holding that the appellant was not entitled to levy a fee of 15 percent on the estate, when in terms of an unchallenged law, the Estate Administrators (Registration and Examination) Amendment Regulations, 2017, Statutory Instrument 150/17, he was entitled to levy such fee on the assets of the estate.

...

The court a quo erred in holding that the disposal of assets with the consent of the second respondent and the beneficiaries to the estate, the alleged misinterpretation of the law constituted valid grounds for removal of the appellant from the position of executor of the Estate of the late Edward Nyanyiwa.

After abandoning the four grounds Mr Magwaliba for the appellant sought leave to amend the appellant’s grounds of appeal in terms of a notice that was filed in advance.  Below are the additional grounds of appeal for which leave for an amendment of the notice of appeal was being sought:

The court a quo erred by ordering the removal of the appellant as executor on the application of the first respondent in terms of a law under which only the Master of the High Court could apply for the removal of the executor.

The court a quo erred by usurping the powers of the Master of the High Court to decide on propriety of the executor remaining in office through removing the appellant as executor without first setting aside a decision by the Master of the High Court in terms of which the Master had refused all the grounds raised by the first respondent as justifying the removal of the Appellant as executor.

The court a quo erred by granting a declarator in review proceedings, which declarator was designed to govern a future party who was not before the court.

The court a quo erred by granting costs against the appellant in circumstances in which it did not give any reasons for such a special order as to costs.”

Mr Magwaliba for the appellant justified the amendment sought on the basis that the intended grounds of appeal raised points of law that called for a judicial pronouncement. In particular, there is a need to “straighten up” the law regulating the right of a beneficiary to a deceased person’s estate to challenge its executor.

Mr Mubaiwa for the first respondent opposed the amendment sought. He took the view that the issues that were covered by the proposed grounds of appeal were never brought before the court a quo. Citing the case of TN Harlequin Luxaire Limited & Anor v Quest Motors Manufacturing (Pvt) Ltd S–30–18, Mr Mubaiwa contended that a point of law could only be granted if it was canvassed by the record of proceedings and if the party seeking to raise the point demonstrates that it is fatal to the case of its opponent. Mr Mubaiwa took the view that when the court a quo removed the appellant as executor of the estate, that was an exercise of inherent jurisdiction. To him, the fact that the first respondent did not cite s 117 of the Administration of Estates Act [Chapter 6:01] did not preclude the court a quo from issuing the relief that it granted.

After hearing counsel on the application for an amendment, the court granted it. The first, second, third and fifth original grounds of appeal were also struck out in the accordance with Mr Magwaliba’s abandonment of those grounds of appeal.

From the grounds of appeal, five issues eminently require resolution in this appeal. These are:

Whether the first respondent had a legal basis for petitioning the court a quo to remove the appellant as executor.

Whether the court a quo could order the appellant’s removal as the executor dative of the estate and if so, whether valid grounds for his removal were established.

Whether the appellant was entitled to levy a fee of 15 percent on the assets of the estate.

Whether it was proper for the court a quo to issue a declarator in the circumstances.

Whether the court a quo’s order on costs was justified in the circumstances of the case.

Mr Magwaliba for the appellant submitted that the first respondent had pleaded a statutory basis for the removal of the appellant as executor namely s 56 of the Administration of Estates Act. He submitted that the section does not give the High Court the power to remove an executor. In counsel’s view the decision of the court a quo is irregular because it removed the appellant as executor in terms of a statutory provision that does not permit it to do so.  In the alternative, it was submitted on behalf of the appellant that even if it were possible for the first respondent to have proceeded in terms of s 52(9), the requirements of that section were not met because the beneficiaries were not cited.

In addition it was argued that the Master as an administrative authority made a decision which could not be ignored but which the court a quo did not take into account. The Master refused to remove the appellant as executor. The court a quo could not simply superimpose its decision without setting aside that of the Master. In counsel’s view, the matter before the court a quo did not satisfy the rare grounds under which a court may interfere with a decision of a competent administrative authority.

Regarding the fees that were charged by the appellant, Mr Magwaliba strongly submitted that those fees were levied in accordance with the Estate Administrators ( Registration and Examination) Rules, 2004 (SI 2 of 2004). Finally, on the issue of the costs order that was issued by the court a quo it was Mr Magwaliba’s contention that that order was not justified by the court a quo as it ought to have done.

The point of departure in the submissions made on behalf of the first respondent by Mr Mubaiwa was that the first respondent specifically sought the removal of the appellant as executor a quo. In that regard, so it was argued, the court a quo had made specific findings against the appellant on the basis of its inherent jurisdiction. In advancing that argument counsel noted that the findings of fact made by the court a quo including the finding that there was now mistrust of the appellant by the beneficiaries, were not challenged by the appellant.

On the aspect of whether the court a quo overlooked the decision of the Master, Mr Mubaiwa submitted that the High Court engaged the issue and made the finding that the Master and the appellant had been partisan towards each other. According to counsel, the fact that the decision of the court a quo does not set aside the decision of the Master is inconsequential. This is because this Court has the authority under s 22 of the Supreme Court Act to correct the said omission. In support of this proposition, Mr Mubaiwa relied on the authority of Mhora v Mhora S–89–20.

In advancing argument on the issue of the appellant’s fees Mr Mubaiwa submitted that the Estate Administrators (Registration and Examination) Rules, 2004 (SI 2 of 2004) should be interpreted literally. Counsel suggested that there was a purpose behind the separation of the Tariff in the Schedule to the Regulations. In any event, so it was argued, the issue of the appellant’s claim of 10 percent on the basis of valuations he had undertaken had fallen away because the valuations had been set aside by the court.

In dealing with the declaratur that was granted a quo, counsel for the respondent took the view that the declarator was not opposed and, therefore, no right of appeal could lie against that declaratur issued.  On the order of costs that was granted by the court a quo, Mr Mubaiwa submitted that ordinary costs were awarded even though punitive costs were adverted to in the body of the judgment. Notwithstanding the aforementioned submission, counsel agreed with the view that costs in the court a quo had to be borne by the estate.

THE LAW

The fundamental question to be addressed in this appeal is whether or not a beneficiary to a deceased person’s estate has a right to approach the High Court seeking the removal of an executor. I mention in passing that s 117(1) of the Act allows the Master to apply to a judge of the High Court for the removal of an executor on the grounds set out in that section including that an executor has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law.

It is quite apparent that only the Master is entitled to approach the High Court seeking the removal of an executor in terms of that subsection. Can it be said that by its specific reference to the Master the section precludes any other interested person from seeking the removal of an executor? I do not think so.

The point was made in The Master v Edgecombe’s Executors and Administrators 1910 TPD 263 at 269 – 270 that:

“I have no doubt that the courts administering Roman-Dutch law and the authorities adopted by these courts applied to administrators the same obligations and legal principles as had been transferred from the law upon the subject of guardianship to the office of executor, and that, apart from local statute, our Supreme Court has the same powers of control, appointment and removal with reference to guardians and executors.

...

This being the position under our common law, it is necessary to see if any alteration has been made by local statute.

...

I have come, therefore, to the conclusion that the Court has exactly the same power to remove the respondents from the position of trustees and administrators as it would have to remove them under common law from the position of executors.”

The above position was confirmed by the High Court in this jurisdiction in the relatively more recent case of Katirawu v Katirawu 2007 (2) ZLR 64 (H), where Makarau JP (as she then was), at 68F – G. expressed the view, which I totally endorse, that;

“It has been held that, under Roman-Dutch Law, the courts possess inherent power to remove a trustee or administrator (even one appointed under a will), on the ground that his continuance in office will prejudicially affect the future welfare of the estate entrusted to him. See Fey NO and Whiteford NO v Serfontein & Anor 1993 (2) SA 605 (A) at 610B.”

It seems to me that the implications of the existence of a common law remedy to remove an executor alongside the statutory remedy in the Act requires closer examination. I find it to be self-evident that the provision of a statutory remedy for the removal of an executor, at the instance of the Master by chamber application, is intended to provide an expeditious and inexpensive means of protecting an estate and its beneficiaries. I find support for this proposition in the case of Fey NO & Whiteford NO v Serfontein & Anor 1993 (2) SA 605 (CA) at 614F, where a pertinent observation is made:

“It may be that by entrusting the statutory removal of a trustee to the Master the Legislature sought to provide a remedy which is cheaper and more expeditious. In my judgment, however, it is not an exclusive remedy; and the Court’s common-law power of removal remains.”

In any event, had the Legislature intended to abrogate the common-law power of the High Court to remove an executor and the corresponding right of interested persons to petition that court for such relief, it would have said so expressly. It is a hallowed principle of statutory interpretation in this jurisdiction that a statute cannot effect an alteration of the common law without expressly saying so. See Nyamande & Anor v Zuva Petroleum (Pvt) Ltd & Anor 2015 (2) ZLR 186 (S) at 190E. See also Katirawu (supra) at 69F.

ANALYSIS

Whether or not the first respondent had a legal basis for petitioning the court a quo to remove the appellant as executor?

This issue resolves itself upon consideration of the principles of law already discussed. By reason of the common-law power to remove an executor that is reposed in the High Court, the first respondent was entitled to approach it for that relief. The critical factor is that the Master had effectively dismissed, out of hand, her objections to the appellant’s valuations and his removal from office. In the circumstances, it was not only practical but also proper for her to petition the court a quo.

The appellant’s argument that the application before the court a quo did not satisfy the requirements of s 117 of the Act is of no moment at all because the application was not made in terms of that provision. There is nowhere in the first respondent’s founding affidavit where an averment is made that she was approaching the court a quo in terms of s 117. On the contrary, she simply stated that her application was for the setting aside of the Master’s decisions in respect of her objections and for the appellant’s removal. I add that the founding affidavit a quo sustained the necessary averments for a common law application for the removal of the executor.

I therefore find no merit in the appellant’s ground of appeal challenging the competency of the court a quo to remove the appellant under common law. The appellant cannot sustain a case on non-existent facts.

Whether or not the court a quo could order the appellant’s removal as the executor dative of the estate and if so, whether valid grounds for his removal were established?

Once it is accepted that under common law the court a quo had inherent power to remove the appellant as executor on the application of the first respondent, the acceptable grounds under which it could have been done call for consideration in order to determine whether a case for the appellant’s removal was made.

In the case of The Master v Edgecombe’s Executors and Administrators (supra), at 266 – 267 the following passage appears:

“The authorities are quite clear that any unfaithful dealing by an executor, whether connected directly with the administration of the estate under his charge or whether consisting in breach of trust in connection with other matters will justify his removal from office (Voet 26, 10, 102; Bronkhorst I Rasmus [1907] T.S. 486.”

Further, in the case of Ex Parte Suleman 1950 (2) SA 373 (C), at 376, it was held that an executor could be removed if, by his continued stay in office, the estate would be prejudiced. The court in the Suleman case went on to hold that the conduct of the executor therein constituted a want of reasonable fidelity and that an application for his removal had to be granted.

I must make the point that a court exercises equitable jurisdiction in respect of the removal of executors. See Ex Parte Hills 1959 (4) SA 644 (E), at 647. An equitable jurisdiction naturally involves considerations of justice and fairness. For this reason, I must add the position adopted by the court in Ex Parte Hills (supra) citing the case of Sackville West v Nourse, 1925 AD 516 that:

“But in cases of positive misconduct Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust: it is not indeed every mistake or neglect of duty or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to show a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”

The paramount consideration in determining whether to remove an executor as set out in Volkwyn, N. O. v Clark & Damant 1946 WPD 456, 474 is whether such disharmony as exists imperils the trust estate and its proper administration. See also Ex Parte Hills (supra) at 647A whereat it is also stated that the paramount consideration is the welfare of the beneficiaries and of the trust estate.

I turn now to consider the court a quo’s findings and basis for removing the appellant as executor. The court a quo held that the appellant had disposed of the estate’s assets with the first respondent’s consent and approval despite court challenges against his conduct. It added that there was obvious mistrust of the appellant, which made a very good case for his removal. Regarding these findings, I agree with Mr Mubaiwa’s submission that the appellant did not specifically impugn them, and as such they ought to stand.

A close examination of the record shows that there was a good basis for the conclusions reached a quo.  I have no doubt in my mind that the appellant’s conduct endangers the estate. In fact one may be forgiven for holding the view that in the appellant’s mind the estate is there for his own benefit and not the beneficiaries. Despite the decision of this Court in case number SC 178/21 which nullified the appellant’s valuations of the assets belonging to the companies in which the appellant had shareholding, the appellant still demonstrated an appetite to rely on those valuations throughout the proceedings. In the circumstances, one cannot resist the inference that there cannot be any other reason for the appellant’s insistence on defending the valuations he obtained other than to increase his remuneration. Not only does this suggest a want of reasonable fidelity but it also founds a basis for mistrust as the court a quo correctly concluded.

The appellant placed reliance on the decision of this Court in Van Niekerk NO v Master of the High Court 1996 (2) ZLR 105 (S) for his proposition that there were insufficient grounds before the court a quo to justify his removal. My view is that the circumstances in that case are distinguishable from the present. First, the application in that case was not made under common law but specifically in terms of s 117(1), (b) and (d), of the Act. Thus, it had to satisfy the statutory grounds for the removal of an executor set out therein.

Second, this Court held that the primary court in the Van Niekerk case had not made findings, as was required of it under the Act, that the executor had “failed to perform satisfactorily any duty or requirement imposed upon him” nor that he was “no longer suitable to hold such office”. These grounds had to be satisfied in terms of s 117(1), and in the absence of sufficient satisfaction of those grounds, the executor therein could not be removed.

The principal consideration under common law for the appellant’s removal is the welfare of the beneficiaries and the trust’s estate. In my view, the case that was before the court a quo satisfied this standard. The appellant’s valuations of the estate’s property were improperly done, as has already been found by this Court in an earlier appeal. They evidently inflated the value of the assets. Moreover, the fees and remuneration in the interim liquidation and distribution accounts that the appellant proposed for himself significantly and unlawfully impoverish the estate as shall become apparent shortly. This throws much doubt on the appellant’s capacity to properly execute his duties and endangers the estate’s property.

Accordingly, for reasons advanced by the court a quo, which I have accepted, and for the additional reasons I have set out above, the court a quo cannot be faulted for concluding that a proper case for the appellant’s removal was made. It would not have been in the interests or the welfare of the beneficiaries as well as the estate for the appellant to continue as executor.

Notwithstanding the conclusion I have just reached regarding the removal of the appellant, there is a related attack that was made by Mr Magwaliba on the judgment of the court a quo which should be dealt with. It is that the court a quo could not order the removal of the appellant without setting aside the Master’s decision refusing a request for his removal. Mr Magwaliba added that the court a quo was not even suited to substitute its decision in place of that by the Master since the Master’s decision was administrative in nature.

While I tend to agree with Mr Magwaliba that the court a quo was first supposed to set aside the decision of the Master before ordering the removal of the appellant, I am unable to agree with the second leg of his argument.

While courts are loathe to usurp the decision-making function of an administrative authority this is not cast in stone. In appropriate cases, the court may be justified in stepping in and substituting its own decision. These include where the end result is a foregone conclusion such that it would be a waste of time to refer the matter back; where the extent of bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction again or where the court is in as good a position as the administrative body to make the decision. See Affretair (Pvt) Ltd & Anor v M K Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S).

On a robust consideration of the case that was before the court a quo, it would have been an act in futility to refer the matter back to the Master. On no less than two occasions, the Master had decided that there was nothing amiss in the appellant’s conduct and expressed his disinclination to institute proceedings for the appellant’s removal. Before the court a quo, the Master had also declared that he was functus officio and that it was unconstitutional for him to assess the appellant’s remuneration under s 56 of the Act.  In any event, considering the material evidence that had been placed before it, the court a quo was in as good a position as the Master to make the decision regarding the appellant’s removal.

These circumstances would certainly explain why the court a quo proceeded to order the removal of the appellant as executor of the estate. However, its error lies in failing to set aside the extant decision of the Master as it should have.

Mr Mubaiwa strongly argued, on the strength of the decision of this Court in Mhora v Mhora S–89–20 that the omission by the court a quo to set aside the Master’s decision can be rectified in terms of s 22 of the Supreme Court Act. In the Mhora case, the High Court omitted to grant a decree of divorce in matrimonial proceedings. This Court, at pp 8 – 9, considered its powers and stated;

“Section 22 (1) (a) empowers this Court to, on the hearing of an appeal, vary or amend, the judgment appealed against or give such judgment as the case may require. Section 22 (1) (b) (ix) empowers this Court to take any other course which may lead to the just, speedy and inexpensive settlement of the case. Section 22 (1) (b) (ix)gives this Court a wide discretion to take any other course to justly speedily and inexpensively resolve issues which the court has to deal with on appeal. ...

In my view a correction of the court a quo’s order by adding a decree of divorce to it will result in a just, speedy and inexpensive resolution of the court a quo’s inadvertent omission, to grant a decree of divorce. Accordingly the court a quo’s order is corrected by prefixing it with the words:

‘A decree of divorce be and is hereby granted.’”

I agree that the approach taken in the Mhora case should be adopted. This is because the court a quo, having intended to supplant the Master’s decision with its own, was supposed to first set the decision of the Master aside. But that may be corrected in terms of s 22(1)(b)(ix) of the Supreme Court Act as correctly contended for by Mr Mubaiwa. This would entail the insertion of a paragraph ordering the setting aside of the Master’s decision regarding the removal of the appellant.

Whether or not the appellant was entitled to levy a fee of 15 percent on the assets of the estate?

That brings me to the legality of the fifteen percent fee that the appellant charged on the estate’s assets. The  appellant levied his fees in terms of the Estate Administrators (Registration and Examination) Rules, 2004, published in S.I. 2 of 2004 (“the Rules”). Rule 19 thereof provides that “The fees for Executors and remuneration for Executors, Curators and Tutors shall be as set out in the Third Schedule”.

It is accepted by both the appellant and the first respondent that the Third Schedule to the Rules was amended by S.I. 50 of 2017 to provide for the following:

“Third Schedule

Part A

EXECUTOR’S FEES

On the gross value of assets............... 4%

Minimum fee ........................US$1000.00

Part B

TARIFF OF EXECUTORS REMUNERATION

On capital assets of deceased brought to account by the executor....................................10%

....”

The Third Schedule to the Rules was again amended through S.I. 59 of 18 by the repeal of Part A and the substitution of Item 1 with a fee of 5 percent on the gross value of assets. Notably, the question arising only relates to the appellant’s remuneration that was levied in terms of Item 1 of Part B of the Third Schedule on capital assets of the deceased that he claimed to have “brought to account”. The question really is: how does an executor bring the capital assets of the deceased to account?

In interpreting the phrase “brought to account” in his heads of argument, the appellant referred this Court to a number of decisions in this jurisdiction and in South Africa in which the phrase appears. In none of those cases is the phrase “brought to account” defined. Perhaps, by citing different contexts in which the phrase is used, the appellant sought to persuade the court to impute the meaning of the phrase in those passages to its use in Part B of the Third Schedule to the Rules. I do not agree with the approach suggested by the appellant for interpreting the phrase “brought to account”. Courts are duty-bound to interpret statutes using the accepted canons of interpretation.

Black’s Law Dictionary, 4 Ed, (1968), at 240 defines the word “bring” as “the doing of something effectual; the bringing of someone to account, or the accomplishment of some definite purpose”. The same dictionary also observes that the word “account” is a “generic term, difficult to define, having various meanings, depending somewhat upon the surrounding circumstances and the connection in which it is used”. See Black’s Law Dictionary, op cit., at p 110.

In light of these definitions, I take the view that the phrase “bring to account” as it is used in the Rules connotes a positive act by an executor of identifying capital assets of the deceased person that would not have been accounted for but for the executor’s efforts. The phrase goes beyond the mere listing and particularisation of capital assets, as the appellant did in this case, that were brought to the attention of the executor by some other person.

I say so because Item 1 of Part B uses the words “by the executor”, which suggests the sole effort of the executor in identifying the capital asset. Thus, for an executor to be said to have brought capital assets to account, he must show that the capital assets in question would not have been known but for his sole effort. It is significant that by merely listing known assets, the appellant would be entitled to 5 percent of their gross value.  It would be absurd to then say that he should be paid an additional 10 percent for the reason that capital assets are involved.  Such a construction could not have been the intention of the law giver.

Accordingly, I conclude that in the absence of proof  that the appellant, through his sole efforts, brought capital assets to account, he is not entitled to a remuneration of ten percent on any capital assets. In addition, I also make the finding that the court a quo properly held that the appellant could not have claimed ten percent on those assets because he had not brought the related capital assets to account. Therefore, the order of the court a quo setting aside the interim liquidation and distribution accounts ought to be sustained.

Whether or not the court a quo properly granted the declaratur it issued?

In terms of s 14 of the High Court Act [Chapter 7:06], a declaratur is a discretionary remedy granted by the High Court in respect of any existing, future or contingent right or obligation. This Court stated in Streamsleigh Investments (Pvt) Ltd v Autoband Investments (Pvt) Ltd 2014 (1) ZLR 736 (S), at 750C – D that in proceedings in which a declaratory order is sought:

“an applicant must establish that some tangible and justifiable advantage in relation to its position with reference to an existing, future or contingent legal right or obligation may appear to flow from the grant of the declaratory order sought.”

It is also a principle of our law that a litigant must lay out or plead a basis for the relief he or she seeks in his founding affidavit. This is because an application stands or falls on the founding affidavit and the facts alleged in it. See Austerlands (Pvt) Ltd & Ors v The Sheriff of Zimbabwe & Ors 2006 (1) ZLR 372 (S).

Paragraph 5 of the order of the court a quo is a declaratory order. However, the first respondent did not specifically plead the requirements of a declaratur in her founding affidavit. The jurisdictional facts upon which the court a quo ought to have exercised its discretion in granting the declaratur were absent. In any event, the declaratur was not justifiable as it predetermines, without regard to the full nature of the estate and the possibility of changes in the composition of the assets, the fees that will be charged by the future executor of the estate. There was a misdirection as such an order was not justifiable. It stands to be set aside.

Accordingly, the related ground of appeal challenging the issuance of a declaratory order has merit.

Whether or not the court a quo’s order on costs was justified in the circumstances of the case before it?

The general position of the law is that where an executor is cited in his official capacity, the estate may be encumbered with the costs of such litigation. This appears to be the approach followed in the Van Niekerk case (supra). In appropriate circumstances, a person instituting proceedings against a deceased estate may even be entitled to have the costs made payable out of the estate whether or not he is successful, although there is a rider that the estate must not be unjustifiably burdened by costs incurred by a person instituting the proceedings. See Bonsma, NO v Meaker, NO & Ors 1973 (4) SA 526 (R). However, where such special costs are sought against an estate, they must be pleaded. See Mpansi & Ors v Dube & Ors 2015 (1) ZLR 587 (S), at 589F – G.

The appellant was sued nomine officio. He was not responding to the application by the first respondent in his personal capacity.  The proceedings before the court a quo were instituted for the benefit of the estate. Despite this, the court a quo simply ordered the appellant to pay the costs of the application. No reasons are advanced for that order and this constitutes a misdirection in itself. See Trustees of the Mukono Family Trust & Anor v Karpeg Investments (Pvt) Ltd & Ors SC-45-21. During the hearing of this appeal, Mr Mubaiwa conceded that the costs of the application a quo ought to have been borne by the estate.

I agree that the order as to costs cannot stand. It is only proper that the order as to costs be set aside and substituted with an appropriate order.

DISPOSITION

The first respondent, was entitled as of right, to approach the court a quo under the common law. Correspondingly, the court a quo had the power to order the appellant’s removal under the same law. I am satisfied that there were sufficient grounds before the court a quo for the removal of the appellant as executor. His continuance as an executor of the estate which he was itching to dissipate was prejudicial to that estate.

In respect of the court a quo’s approach in ordering the removal of the appellant as executor without first setting aside the Master’s decision it was improper as it should have set aside the Master’s decision first. The omission ought to be corrected in terms of s 22(1)(b)(ix) of the Supreme Court Act by the insertion of the necessary order.

There is no basis for overturning the court a quo’s decision on the tariff employed by the appellant to levy fees against the estate. On a proper interpretation of the words “brought to account” the appellant could not be said to have brought to account any of the estate’s capital assets that he itemised in the distribution accounts.

In respect of the costs in the court a quo, it was only appropriate that they had to be mulcted on the estate. The order as to costs must be set aside. However, the costs of this appeal stand to be paid by the appellant because he came on appeal to vindicate his personal interests and not those of the estate. There is no basis for saddling the estate with the costs of an appeal not instituted for its benefit but that of the appellant.

It is trite that executors may, in appropriate and exceptional circumstances, be burdened with costs. This includes where it is desirable for a court to mark its dissatisfaction with the executor’s conduct. See the Mpansi case (supra) at 590E – H. As a matter of fact, the appellant’s conduct puts the whole machinery of the administration of the deceased person’s estates into disrepute and as such he cannot escape the consequences of his misadventure.

Accordingly, it be and is hereby ordered as follows:

The appeal succeeds in part.

The judgment of the court a quo is set aside in part and amended in the following respects:

In terms of section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13], by the insertion of a new paragraph as paragraph three, after paragraph two, in the following terms:

“The decision by the first respondent dated 5 October 2022 allowing the second respondent’s continuance as executor of the Estate of the late Edward Nyanyiwa under DR 471/19 be and is hereby set aside.

By the deletion of para 5.

By the deletion of paragraph six and substitution of:

“The costs of this application shall be borne by the Estate of the late Edward Nyanyiwa.”

By renumbering it as follows:

the original paragraph three shall become para 4; and

the original paragraph four shall become para 5.

For the avoidance of doubt, the appeal is dismissed in respect of the remaining parts of the judgment of the court a quo.

The appellant shall pay the costs of this appeal in his personal capacity.

GUVAVA JA: 			I agree

CHATUKUTA JA	:		I agree

DNM Attorneys, appellant’s legal practitioners

Sawyer & Mkushi, first respondent’s legal practitioners