By Court Reporter | The executor of Zimbabwe’s late veteran businessman, Edward Nyanyiwa, Clever Mandizvidza was last week permanently booted from managing the man’s estate.
Mandizvidza had appealed an earlier judgement by the High Court in March which ordered him off the estate following an application by one of the businessman’s daughters, Henrietta.
He was described as a greedy Estate Executor after distributing USD11 each to children out of a USD240,000 section of the estate. By law, Mandizvidza was only allowed to touch the company at the level of its shares for distribution but we went on to asset strip the whole entity.
Mandizvidza had at the time of the verdict ceased all disbursements l to beneficiaries for 3 years. One of the children alleged to ZimEye saying, “that was meant to weaken us, so we do not take him to court.”
Henrietta Nyanyiwa, had argued that the executor, was charging 15% of the estate’s gross assets as opposed to the Statutory 5% and documents showed that he had wrongly valuated properties.
Mandizvidza’s defense was that the valuation had been guided per Section 6 of the Estate Duty Act and that the auditors who had valued the companies had taken into account all relevant facts and considerations.
Ruling, Justice Chitukuta and Justice Guvava said the decision by the Master of the High Court to make Mandizvidza continue as an executor was improper, and also said the lawyer will have to bear his own costs on the case as he appealed to the Supreme Court for his private interest.
Speaking to ZimEye.com on Tuesday days after the verdict, Clever Mandizvidza said he is content with the decision despite him being the loser. He said:
“So we are saying, if this is the court’s finding…remember I deal with so many cases; so if the court says, no, on this one we believe you must put your hands off, leave it, let the court chose another person, I should be okay with that, because this is not my personal…
“I should not develop personal interest in an estate, you follow? What I should defend is my professional opinion, when I am given a task I should apply the law without fear or favour.
“But if the court says okay, okay this is your legal mind, this is how you see it, we think this assignment, leave it, let’s give it to another, so we might have to wait for the other executor, he will study, he will see, and he will also interpret things, and then we will see whether he does things differently but more or less the law that governs administration of estates is the same.”
Meanwhile, part of the verdict reads:
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’sapproach 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’sdecision 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.