Rufudza v Masomera N.O and 3 Others (810 of 2022) [2022] ZWHHC 810 (16 November 2022)

1 HH 810-22 HC 510-22 SUSAN RUFUDZA versus OLIVER MASOMERA N. O. (in his capacity and the Executor dative in the Estate of the Late Socrates Zimunhu) and TINASHE MAGAIZA and ABYGAIL MAGAIZA and THE MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 7 June 2022 & 16 November 2022 Opposed Matter-Condonation Siyakurima, for the applicant Masocha, for the 1st respondent Ngwerewe, for the 2nd and 3rd respondents No appearance for the 4th respondent MAXWELL J: At the hearing of this matter, first to third respondents raised points in limine which are the subject of this judgment. On 18 February, 2016, first respondent granted consent to first respondent to sell the matrimonial house, namely, stand 14410/5 Kuwadzana Township. Harare. Applicant alleges that she had no knowledge of the consent despite the fact that she occupies the house in question with the children of the deceased. She stated that upon divorcing the deceased in 2003, she was awarded a 40% share of the stand in question. However in 2004 she remarried the deceased and the matrimonial home was not disposed. She pointed out that fourth respondent also granted authority to first respondent to dispose of a stand in Epworth as well as 36 herd of cattle to pay estate liabilities. According to her Founding Affidavit, she only got to know of the fourth respondent’s consent on or around 27 May 2016 whereupon she made inquiries on the circumstances surrounding its issuance. On 17 August, 2016, fourth respondent convened a meeting at which HH 810-22 HC 510-22 meeting applicant got to know that first respondent had already sold the house to second and third respondents. Applicant issued out summons under HC 10444/16 seeking to have the agreement of sale cancelled. The matter was struck off the roll after the parties were heard on preliminary issues. She appealed to the Supreme Court under SC 55/2020 which appeal was dismissed on 11 November, 2021 on the basis that the Master’s Consent to sell must be challenged first. Applicant filed an application for condonation of late filing of an application for review following the Supreme Court’s decision. In her view, the intended application for review has great prospects of success as there are glaring illegalities committed by first and fourth respondents in failing to comply with the provisions of the law. The application is opposed. First respondent raised three points in limine. The first was that the application is fatally defective as applicant ought to have sought an extension of time within which to file an application for review. The second was that the application relied on an unrevived super-annuated judgment. The third was that applicant had not exhausted internal remedies. On the merits, first respondent submitted that applicant’s legal practitioners had not represented her properly and that she had been informed that she was not a co-owner of the house on the papers. He pointed out that applicant ought to have proceeded in terms of s 47 of the Administration of Estates Act [Chapter 6:01] as far as her share of the house was concerned. In his view, the application has no merits as it is tainted with glaring and sheer ignorance of the law and gross incompetence and inconsistence. He prayed for the dismissal of the application with costs on a higher scale. Third respondent also opposed the application and second respondent supported her averments in the opposing affidavit. She raised two points in limine. The first is the same that was raised by first respondent. He second is that the applicant’s right to challenge the decision of the fourth respondent to grant the consent to sell the property in question is prescribed. On the merits she pointed out that applicant has not proferred any reason for failing to file the application on time. She further pointed out that the decision to challenge the Master’s Consent to Sale is not bona fide and is clearly an afterthought. She submitted that the said decision was made on 18 February 2016 and applicant indicated her intention to challenge it on 27 May 2016 only to sit on her laurels until January 2022. Third respondent further submitted that applicant cannot approbate and reprobate as in HC 10444/16 she asserted that she had no qualms with the Master’s Consent HH 810-22 HC 510-22 to Sale. She prayed that the application be dismissed with costs on a legal practitioner and client scale de bonis propiis. In answer to the submissions in the opposing affidavits, applicant submitted that there is no provision in the High Court rules for an applicant seeking condonation to seek an extension of time within which to file an application for review as suggested by respondents. She further submitted that prescription does not arise on account of judicial interruption as she issued summons on 14 October 2016. She insisted that the application is a bona fide pursuit of justice which has very good prospects of success and there is no justification for seeking costs on a legal practitioner and client scale let alone de bonis propiis. At the hearing of the matter, respondents persisted with the points raised in limine. They are considered below. 1. Failure to comply with Rule 62(4) of SI 202/21 Mr Masocha submitted that applicant ought to have sought extension of time within which to file an application for review in addition to seeking condonation. He submitted that seeking condonation only presupposes that there is an application already before the court. He referred to the case of Matanhire v BP Shell Marketing Services (Pvt) Ltd SC 113/04. Mr Ngwerewe pointed out that the period stipulated in the rules is mandatory and the rule requires a request for extension of time if the time is not met, hence reference to good cause shown. He referred to the case of Kadungure v Kadungure SC 19/07. In response Mr Siyakurima submitted that the point raised has no merit as there is no specific provision in the High Court Rules that deals with an application of this nature. He pointed out that both counsel had made reference to Supreme Court cases and that r 43(1) and (3) of the Supreme Court Rules of 2018 specifically provided for that. He submitted that all precedents on r 62 of the High Court Rules, Statutory Instrument (SI) 202 of 2021, refer to condonation without the concomitant request for extension of time. In his view, r 62 of SI 2002/21 is more or less a re-introduction of r 267 of the former rules. There is merit in the point taken in limine. It is not correct that r 62 is a re-introduction of rule 267 of the former rules. The said r 267 provided that; - HH 810-22 HC 510-22 “267. Limitation of time for application for condonation No application in terms of rule 266 may be made after the expiry of twenty-four days from the date on which the sentence was passed, unless the judge otherwise orders.” The rule allowed an appeal out of time on the order of a judge. The wording is different from what is stipulated in Rule 62 (4) of SI 202/21 which is worded as follows; - “(4) Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred: Provided that the court may for good cause shown extend the time.” The proviso specifically refers to extension of time on good cause shown. Counsel for applicant did not make any submissions on the proviso despite its being emphasized in the first - third respondents’ Heads of Argument. The introduction of the proviso which refers to extension of time, in my view, removes the difference between the High Court and Supreme Court rules where one is seeking condonation of not filing an application for review within the time stipulated in the rules. The Cambridge Dictionary defines condone as “to accept or allow behaviour that is wrong:” Rule 62 (4) then requires that after a litigant’s explanation for failing to apply for review within the prescribed time has been accepted, the litigant must show good cause why an extension of time within which to do so should be given. As submitted for first –third respondents, no request was made for the extension of time within which to apply for review. This issue was raised as far back as February 2022 and applicant chose to disregard it. The first point in limine is upheld. 2. That the order relied on is super-annuated. Though this point was raised in the first respondent’s opposing affidavit, it was not addressed in his heads of argument. Mr Masocha referred to it in his oral address. Mr Siyakurima submitted that the revival is wholly unnecessary as the parties were husband and wife until the death of the husband. It was not disputed for the respondents that the revival was unnecessary. This point in limine therefore cannot succeed. 3. Failure to exhaust Internal Remedies. HH 810-22 HC 510-22 Mr Masocha submitted that applicant ought to have filed a formal complaint to the fourth respondent in terms of section 116 of the Administration of Estates Act [Chapter 6:01]. Had she done so, he submitted, she would then seek the review of fourth respondent’s decision on her complaint. He further submitted that there is no decision to review before the court therefore applicant has approached the court pre-maturely. He further submitted that applicant ought to have requested for an inquiry into the conduct of the executor. In response Mr Siyakurima submitted that this point has no merit as applicant had made the necessary inquiries. The record of proceedings shows that applicant sought reasons for the Master’s decision and she was advised by letter dated 20 June, 2016, Annexure “E” that the Master does not need to first obtain beneficiaries’ consent. However there is no record that the applicant requested an inquiry into first respondent’s conduct. For that reason the point in limine partially succeeds. The point in limine to the effect that the matter is prescribed is considered abandoned as no submissions were made either orally or in heads of argument. The first point in limine that succeeded has the effect of disposing of this matter. Applicant partially succeeded and therefore should not be burdened with the costs in this matter. Accordingly the following order is made. The application be and is hereby struck off the roll. Each party bears its own costs. Sawyer & Mkushi, applicant’s Legal Practitioners. Messrs Makonyere & Pfigu Law Chambers, first respondent’s Legal Practitioners. Messrs Chatsanga & Partners, second & third respondents’ Legal Practitioners.