NCUBE (NEE NDLOVU) v DEPUTY MASTER NO & ANOR

HIGH COURT, BULAWAYO

[Opposed Application HB 34-16]

February 4 and 18, 2016

MATHONSI J

Administrative law  –  Audi alteram partem rule  –  Right to be heard by an interested party before a decision concerning a deceased estate was made by the Deputy Master.

The applicant sought the nullification of all administrative decisions taken by the Deputy Master of the High Court on the basis that he took administrative decisions prejudicial to the applicant, well knowing that the applicant had an interest in the matter, but without according her an opportunity to be heard.

Held, that official power affecting the rights and interests of individuals must be exercised fairly, that is impartially in fact and in appearance giving the affected person an opportunity to be heard. It was the right of the applicant to be accorded an opportunity to make submissions before she could be disinherited and before a property she regarded as her home could be sold.

Cases cited:

Gurta AG v Gwaradzimba NO 2013 (2) ZLR 399 (H), referred to

Mabuto v Women’s University in Africa & Ors 2015 (2) ZLR 355 (H), referred to

Makromed (Pvt) Ltd v Medicines Control Authority of Zimbabwe 2011 (1) ZLR 324 (H), referred to

Telecel Zimbabwe (Pvt) Ltd v Postal & Telecommunications Regulatory Authority of Zimbabwe & Ors 2015 (1) ZLR 651 (H), referred to

U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 2009 (2) ZLR 259 (H), applied

Legislation considered:

Administration of Estates Act [Chapter 6:01], ss 24 (2), (3), 34, 35, 120

Administrative Justice Act [Chapter 10:28], ss 2, 3, 3 (1), 4, 4 (2)

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 68

High Court Rules, 1971 (RGN 1047 of 1971), O 5 r 39 (2), O 32 rr 231 (1), 248

Z Ncube, for the applicant

S Collier, for the second respondent

MATHONSI J:

In Mabuto v Women’s University in Africa & Ors 2015 (2) ZLR 355 (H) I associated myself fully with the remarks of MAKARAU JP (as she then was) in U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 2009 (2) ZLR 259 (H) at 267F-G and 268A-B on the new dispensation brought about by the promulgation of the Administrative Justice Act [Chapter 10:28] where the learned Judge President said:

“That the promulgation of the Act brings in an era in administrative law in this jurisdiction cannot be disputed. It can no longer be business as usual for all administrative authorities, as there has been a seismic shift in this branch of law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of s 3 (3) of the Act, applies… The Act provides that an administrative authority which has the responsibility or power to take any administrative action which may adversely affect a right, interest or legitimate expectation of any person shall, inter alia, act reasonably and in a fair manner. The Act proceeds to define what a fair manner, for the purposes of the Act, entails and this includes adequate notice of the proposed action and a reasonable opportunity to make adequate representations, in my view, an embodiment of the audi alteram partem rule.”

Section 2 of the Administrative Justice Act defines “administrative authority” to include an officer, employee, member, committee, council or board of the State as well as any other person or body authorised by any enactment to exercise any administrative power or duty. The fact that the respondent is empowered and enjoined by the Administration of Estates Act [Chapter 6:01] to act, means that he falls squarely within the provisions of the Act.

The rights of individuals to administrative conduct that is lawful, reasonable and fair has since been elevated to constitutional rights contained in the Declaration of Rights of our new Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”). In terms of s 68 of the Constitution:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.

(3) An Act of Parliament must give effect to these rights, and must – 

(a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal;

(b) impose a duty on the State to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration.”

Official power affecting the rights and interests of individuals must be exercised fairly in that decisions should be arrived at fairly, that is impartially in fact and in appearance giving the affected person an opportunity to be heard: Telecel Zimbabwe (Pvt) Ltd v Postal & Telecommunications Regulatory Authority of Zimbabwe & Ors 2015 (1) ZLR 651 (H); Mabuto v Women’s University in Africa & Ors (supra).

The late Jabulani Manombe Ncube died a painful death in Windhoek, Namibia on the night of 26 August 2012. He is said to succumbed to a gunshot wound to the head in the precincts of the home of a Namibian woman he had purported to marry in that country when he was already lawfully married in Zimbabwe. Other than the said Namibian “wife” he left behind a 65 year old widow in Zimbabwe who is confined to a wheelchair, the applicant herein. He is also survived by children. He was buried amid sorrowful scenes in his home country, Zimbab we, as authorities in Namibia remained investigating the cause of his death and the applicant and his relatives registered his estate with the first respondent for administration purposes as DRB 78/13 on 5 February 2013. An edict meeting was convened at the first respondent’s offices where the deceased’s brother Dumisani Ncube was identified for appointment as executor of the estate.

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