Kachingwe & Anor v Master of High Court & Ors (HC 3445 of 2014) [2015] ZWHHC 819 (20 October 2015)

1 HH 819/15 HC 3445/14 NANCY KACHINGWE and MAYAMIKO KACHINGWE versus THE MASTER OF HIGH COURT and FREDDY CHIMBARI N. O and PAULINE MANDIGO N. O and CHIPO KACHINGWE HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 8 October 2014 and 21 October 2015 Opposed Matter Miss E Drury, for the applicant S Ushewokunze, for the respondent MWAYERA J: On 8 October 2014 after reading documents filed of record and hearing counsel I gave an extempo judgment and pronounced the following order: “It is ordered that: 1. The appointment of the second respondent as curator bonis for the Estate late Sarah Letty Kachingwe DR 1437/13 be and is hereby declared null and void and is hereby set aside. 2. The decision of the 1st respondent to allow the second respondent 50 % of the gross assets of the Estate late Sarah Letty Kachingwe be and is hereby set aside. 3. The 1st and 2nd respondents shall bear the costs of this application jointly and severally the one paying the other to be absolved.” In pronouncing the order I prefixed it orally with reasons for granting the order and mentioned that if the parties required written reasons they would be availed. There was no request for the written reasons which were pronounced orally in court on 8 October 2014 up until 9 October 2015. The request came after a file HC 9887/14 was allocated to me for hearing of an opposed application for rescission of judgment. By a letter dated 9 October 2015 from Ushewokunze Law Chambers a request for written reasons was forwarded. HH 819/15 HC 3445/14 The brief background of the matter of necessity will be highlighted and reasons as pronounced in court upon granting of the order will be tabulated. The applicants being daughter and son respectively of the late Sarah Letty Kachingwe filed an application challenging the appointment of the second respondent as a curator bonis to their mother’s estate as they alleged they had no knowledge or consent to such appointment. They challenged the claim and award of 5 % of the estate assets to the second respondent who had been replaced by the third respondent as executrix of the estate. On the date of hearing it was apparent that despite Mr Ushewokunze’s attendance there was no proper opposition filed by the second respondent. The notice of opposition and opposing affidavit were not properly served on the applicants. In fact there was no founding affidavit to talk of in opposition, as the affidavit the second respondent sought to rely on was in the name Reuben Bardavid who is not a party to the proceedings. The “purported” affidavit to place opposition of the application was not an affidavit as it bore another person’s name. The purported amended affidavit again bearing the name of Bardavid sought to be produced on the day of hearing was irregular and did not cure that there was no opposition. As if that was not enough floutment of the rules of this court, the second respondent despite being served with heads of arguments by the applicants on 30 June 2014 at the time of hearing, the respondent had not filed heads of arguments. That is about 2 ½ moths latter. The respondent displayed total and wanton disregard of the rules of the court. Even on the date of hearing without seeking any condonation the respondent evinced desire to disregard the rules of the court. In essence the second respondent was barred and in the absence of properly filed opposition, I found no reason why the order prayed for by the applicants was to be denied. The respondent was barred and thus the application was treated as an unopposed matter. See GMB v Muchero (1) ZLR 2008 at 216 (a Supreme Court decision) and also Mfaro Moyo v Minister of Energy and Power development and Another HH 313-15. Given the infractions of the rules by the respondent the applicant’s prayer was unchallenged. Accordingly it is ordered that 1. The appointment of the second respondent as curator bonis for the Estate late Sarah Letty Kachingwe DR 1437/13 be and is hereby declared to be null and void and is hereby set aside. 2. The decision of first respondent to allow second respondent 5 per cent of the gross assets of the Estate Late Sarah Kachingwe be and is hereby set aside. 3. The first and second respondents shall bear the costs of this application jointly and severally, the one paying the other to be absolved. Honey and Blackenberg, applicant’s legal practitioners Ushewokunze Law Chambers, respondent’s legal practitioners