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.{mprestriction ids=″1,2,3,4,5″}
According to the minutes of the edict meeting kept by the first respondent, it was drawn to the attention of the Deputy Master that the deceased had two wives, the applicant and a Namibian national by the name of Alexia Manombe Ncube and her telephone contact was also supplied. The meeting resolved in the end as follows:
″In concluding, the presiding officer advised all present that:
(i) The Deputy Master will write to Webb Low & Barry so that the will is forwarded to this office.
(ii) The appointment of Dumisani Ncube is suspended pending receipt and acceptance of the will by the Deputy Master's office.
(iii) A civil marriage remains valid until nullified by a court of law – the validity (legality) of the Namibian Woman's marriage to the deceased will have to be addressed.
(iv) Mr Dumisani Ncube will have to liaise with the Deputy Master's office regarding the will.″
The foregoing conclusion had been made because the Deputy Master had been informed that Webb Low & Barry were in possession of a will made by the deceased. It now turns out that subsequent to the edict meeting the Master did in fact contact Webb Low & Barry and was furnished with a will made by the deceased but without reference to the applicant and other interested parties, he proceeded to deal with an application made by the second respondent, who had been issued with Letters of Executorship by the Master of the High Court of Namibia, for a counter-signature of the said Letters of Executorship in terms of s 35 of the Administration of Estates Act.
Without reference to all the interested parties he had dealt with at the edict meeting of 6 March 2013, he says notices were given to all concerned by publication in the Government Gazette, the first respondent accepted the Namibia will following the publication of the notices calling for objections. No objections were received and he counter-signed the Letters of Executorship and granted the second respondent authority as the executor testamentary of the deceased's estate.
Much later on 20 May 2014 the first respondent granted authority to the second respondent in terms of s 120 of Administration of Estates Act, to sell an immovable property situated in Newmansford Bulawayo which belongs to the estate. When all this was done, the applicant says she was not afforded an opportunity to be heard and only became aware of all these administrative decisions after the fact, in June 2014 as she never saw the notices published in the Gazette and Chronicle newspaper.
She has now brought this application seeking inter alia nullification of all the administrative decisions taken by the first respondent after 6 March 2013 on the basis that the first respondent took administrative decisions prejudicial to the applicant, well knowing that the applicant had an interest in the matter, but without according the applicant an opportunity to be heard. In addition, after what had been agreed to between the parties at the edict meeting held on 6 March 2013, the applicant had a legitimate expectation that the first respondent would revert to her after obtaining the will of the deceased. The first respondent acted unreasonably and in an unfair manner by not reverting to the applicant as the surviving widow of the deceased before taking those administrative decisions. It was also unreasonable to expect the applicant to be notified of the application for counter-signature made by the respondent through notices given by publication when the first respondent had the contact details of the applicant and other members of the family.
The application has been opposed by the law firm of Webb Low & Barry notwithstanding that not only is it not a party to the proceedings, it has not sought to be joined as such in terms of the rules of court. Webb Low & Barry have filed opposition to protest vehemently against service of the application upon them as the address for service of the second respondent. In his opposing affidavit, Josephat Tshuma, a partner at that firm complains bitterly that service of the application upon them is not proper service on the second respondent as required by r 231 (1) as read with r 39 (2) of the High Court Rules, 1971 (″the Rules″). This is because the law firm is not the ″authorised agent″ of the second respondent.
Tshuma was emphatic at para 4 of his opposing affidavit that:
″Messrs Webb Low & Barry, Inc. Ben Baron and Partners is not duly authorised to accept service of the process in this matter. Messrs Webb Low & Barry, Inc. Ben Baron and Partners has a mandate to act solely as the second respondent's agents in winding up the estate of the late Jabulani Manombe Ncube. In this regard, the extent of Messrs Webb Low & Barry's mandate is aptly set out in the advert that was published, namely:
'All persons having objections to the counter-signature of such letters of Executorship or being (in) possession of Assets or having any claims against the estate are required to provide such details of such objections, assets or claims to the undersigned or the Assistant Master of the High Court, Bulawayo on or before 07/07/13.'
As such, the extent of Messrs Webb, Low & Barry's mandate was to receive details of any asset, claim or objection in this estate. We do not have mandate to accept court process on behalf of the second respondent.″
Mr Collier who appeared for the law firm took that point further submitting that they no longer represent the second respondent at all as their mandate was restricted to the 21 days during which the notice given to the world by publication subsisted. After that the second respondent was on her own as it were.
Now in my view that is trifling with the court in the extreme, a question of drawing a distinction without a difference and trying to hide behind a finger. If the firm did not want to be involved in the winding up of the estate and did not want to assist the second respondent who is based in Namibia, they had an election not to take the second respondent's brief at all. They cannot be allowed to pick and choose what they will accept in the winding up of the estate.
As it is, it was their agreement to be used as the local domicilium citandi et executandi of the second respondent which qualified the second respondent to submit an application for counter-signature and to sell an immovable property in Newmansford, Bulawayo in which the applicant has an interest. A reversal of that transaction is one of the remedies the applicant is prosecuting. The applicant is also contesting or objecting to the counter-signature of the Letters of Executorship by the first respondent. She also lays a claim against the estate which are features of the notice given through the agency of Webb Low & Barry which firm committed itself to receiving objections to that as well as claims against the estate.
For Mr Collier to say that the moment the 21 days expired, they could no longer accept service is really to worry about form than substance, to rave with the mob about the unattired Royal's beautiful attire. It simply cannot stand.
Even if I were wrong in that conclusion, I would still uphold the service upon Webb Low & Barry as proper for another reason. I agree with Mr Ncube who appeared for the applicant that Webb Low & Barry facilitated the grant of authority to the second respondent by the first respondent to deal with the estate by providing an address for service in Zimbabwe when the second respondent is a foreigner. They cannot therefore abdicate that responsibility when relief is now being sought against the foreign executor who would not have been allowed to act without such address for service.
In terms of s 24 (3) of the Administration of Estates Act:
″24 Letters of administration to executors as appointed by will
(1)-(2) ...
(3) If the Master or Assistant Master has reason to believe that any such last mentioned executor is not resident in Zimbabwe, or that, although he may at the time of making such application be within Zimbabwe, he will not remain therein until he has finally liquidated and settled the estate to be administered by him, the Master or Assistant Master, as the case may be, may grant letters of administration to such executor but shall not deliver those letters of administration to him until –
(a) he accepts domicilium citandi within Zimbabwe; and
(b) he nominates and appoints under power of attorney some other person resident in Zimbabwe with full power to act for him in the administration of the estate; and
(c) ...″
Mr Collier submitted that s 24 of the Administration of Estates Act has no application to this case at all because it deals with the granting of letters of administration to a Zimbabwean executor. They have not been asked to provide a domicilium and were not issued with a power of attorney as envisaged by s 24 (3). He submitted that their case is governed by s 35 of the Administration of Estates Act providing for recognition of a foreign executor.
In my view ss 24 and 35 of the Administration of Estates Act cannot be dealt with in isolation but in conjunction with one another. Whilst it is true that s 35 provides for recognition of a foreign executor, the signing of letters issued by a foreign state has the effect of domesticating foreign letters of administration to such an extent that once signed and sealed they have the same effect as those issued by Zimbabwe. Those letters became those of our court. Section 35 provides:
″35 Recognition of foreign letters of administration
Whenever letters of administration granted in any state are produced to, and a copy thereof deposited with, the Master by the person in whose favour such letters of administration have been granted, or his duly authorised agent, such letters may be signed by the Master and sealed with his seal of office, and shall thereupon be of the same effect and have as full operation in Zimbabwe with respect to, and the Master shall have the same control over, the administration of the entire estate of the deceased in Zimbabwe as though the said letters had been letters of administration granted by the Master.″ (my emphasis)
We know of course that in terms of the proviso to s 24 (2) of the Administration of Estates Act letters of administration cannot be granted to a foreign executor in Zimbabwe and that for the letters to be granted the foreign executor must provide a domicilium. In terms of s 35 of the Administration of Estates Act once the Master signs and seals foreign letters he acquires the same administrative powers over the estate as he does when he issues the letters to an executor. It follows therefore that the counter-signing and sealing of foreign letters assumes the status of the issuing of letters of administration in Zimbabwe, letters which can only be issued to a foreign executor upon provision of domicilium in Zimbabwe.
The legislative intendment was clearly to ensure that no foreign executor is recognised and allowed to function in this country without providing a domicilium citandi at which affected parties may serve him with process concerning the estate. I therefore conclude that the applicant was entitled to serve the application on Webb Low & Barry.
On the merits of the application the first respondent has submitted a report in terms of r 248 of the Rules, which reads in part thus:
″On the 6th of March 2013 my office convened a meeting for the appointment of an executor. It is on this meeting that when (sic) my office became to know (sic) that the deceased had two wives. One who was staying in Zimbabwe whilst the other one was staying in Namibia. The parties nominated Dumisani Ncube to be the executor.
At this meeting the parties told my office that there was a will which was filed with the lawyers, Webb Low & Barry. My officer undertook to write to Webb Low & Barry and also suspend the appointment of an executor see copy of the minutes as annexure 'A'. On the 6th of March 2013 my office wrote a letter to Webb Low & Barry inquiring of (sic) the Will see letter attached as annexure 'B'. On the 7th of March 2013 Webb, Low & Barry proceeded to forward the Will to our office and some sealed Letters of Administration from Namibian High Court. This meant that the said estate had been registered in Namibia under case number 1604/12.
The said documents were advertised in the newspapers for counter-signatures both in the Chronicle and Government Gazette see copies of adverts as annexure 'C'. According to the advert the period for objection did expire on the 7th of July 2013. The parties or the applicant did not put the objection to the adverts and hence she is trying to abuse court process.
It is point noting that the applicant is barred since the die induce (sic) expired and she did object. In order to gain ground the applicant is bringing another issue of whether Namibia has some counter-signature agreement with Zimbabwe. My understanding is Zimbabwe has such agreement with all the countries in the SADC region and it's up to the applicant to prove otherwise.″
Never mind the grammatical frailties of the foregoing passage but what is the first respondent saying really What I can decipher is that indeed the first respondent was aware that the applicant was a widow who had an interest in the estate. Notwithstanding that, he expected her to respond to an advert flighted in the newspaper, if not then the applicant was ″barred″ from claiming the estate. Although s 34 of the Administration of Estates Act requires the respondent to verify if the State issuing letters of administration sought to be counter-signed for recognition is covered by that section, he did not verify that before counter-signing and expects the applicant ″to prove otherwise.″
This is an official who is the custodian of all deceased estates, whose duty it is to protect the interests of not only the deceased estate in question but also those of the beneficiaries including widows. Surely a lot more is expected from the first respondent in the discharge of his duties of administering deceased estates than that.
I have already drawn attention to the provisions of s 3 (1) of the Administrative Justice Act earlier in this judgment, which requires administrative authorities to act lawfully, reasonably and in a fair manner. Section 4 of the Administrative Justice Act empowers any person aggrieved with a failure by an administrative authority to comply with s 3 of the Administrative Justice Act to apply to this Court for recourse; Makromed (Pvt) Ltd v Medicines Control Authority of Zimbabwe 2011 (1) ZLR 324 (H) at 327E; Gurta AG v Gwaradzimba NO 2013 (2) ZLR 399 (H).
This Court is empowered by s 4 (2) of the Administrative Justice Act to either confirm or set aside an administrative decision taken in breach of s 3 of the Administrative Justice Act, among other options available to it.
What we have here is an administrative authority that was approached by a widow of a deceased polygamist well before hand and given the details of all those interested in the estate including another widow domiciled in Namibia. He was given a list of all the property in Zimbabwe falling under the estate. He was guided to the offices of a law firm which was believed to have the testamentary disposition of the deceased by a group of interested parties who had nothing to hide. On his part he promised to pursue the issue of the will and revert to them raising a legitimate expectation in them that they will be consulted every step of the way.
Inexplicably, the moment he obtained the Namibian Will he completely ignored those that had actually led him to that document, those that had a vested interest in the estate and went on a tangent. What is even more scary is that he does not see anything wrong with his conduct and chides the widow as abusing the process of the court, a widow whose interests he has trampled on in violation of the basic rules of natural justice, in particular the audi alteram partem rule.
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. Honestly, if the first respondent does not protect the interests of widows in administering deceased estates, whose interests will he safeguard Even if the applicant had been disinherited by the deceased in his Will, she was entitled to know and also to make representations. A person charged with the task of administering the estate cannot hide behind the legal niceties of having published a notice when the identity of those involved is known and they can easily be contacted.
In my view it is unreasonable to expect known individuals to have notice by publication in the newspaper. There is reason for the requirement of publication. It is that those that may be interested would be unknown and for that reason the law accepts that nominal notification given by publication. It is a fact of life that not all people read newspapers. Even those that read them may miss a copy or two or the advertisement. Where those that are concerned with the estate are known, they should be contacted directly not by publication. A fortiori, those that have taken the trouble to introduce themselves to the first respondent and to express their interest have a legitimate expectation, protected by both the Administrative Justice Act and the Constitution, to be informed directly by the office of the first respondent when their interests are being threatened or compromised.
I am satisfied therefore that the applicant has made out a case for the relief provided for in s 4 of the Administrative Justice Act.
In the result, it is ordered that:
1. The administrative decisions taken by the first respondent in the Estate of the Late Jabulani Manombe Ncube, DRB 79/13 after the adjournment of the edict meeting held on 6 March 2013 to accept a Will from Namibia, to counter-sign foreign letters of executorship, to issue letters of administration to the second respondent, and to issue authority in terms of s 120 of the Administration of Estates Act be and are hereby declared to be in breach of s 3 of the Administrative Justice Act and are set aside.
2. The first respondent is hereby directed to re-open the process of the application by the second respondent for the counter-signature of the foreign letters of Executorship from Namibia, the acceptance of the Will and the application for authority to sell any property of the estate on notice to the applicant and other known interest parties.
3. The costs of this application shall be costs in the administration of the estate.
Ncube & Partners, applicant's legal practitioners
Webb, Low & Barry, second respondent's legal practitioners
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