Estate Late Philip Mpofu (aka Philip Sihube Mpofu) and Others v Deputy Master of High Court and Another

Philip Mpofu died on 5 April 2008. At an edict meeting convened at the Master's offices with the deceased's relatives, it was unanimously agreed that Peggy Mpofu, the surviving widow, be appointed as Executrix Dative of the Estate. The 2nd applicant (Peggy Mpofu) performed her duties until 5 June 2017, when the 2nd respondent (Oliver Masomera) wrote a letter advising beneficiaries that he had been appointed Executor Dative of the same estate. This purported appointment was done unilaterally without notice to or consultation with the beneficiaries or the existing Executrix Dative. The 2nd respondent proceeded to visit estate properties and interview tenants, occupants and employees. Despite meetings and correspondence, the 1st respondent (Deputy Master) maintained the validity of the 2nd respondent's appointment, creating a situation where two persons held Letters of Administration for the same estate. The applicants (estate and beneficiaries) brought an urgent chamber application seeking interim relief to prevent the 2nd respondent from acting as executor pending final determination of the matter.

• Whether the urgent chamber application for a declaratory order was the proper procedure to challenge the Master's appointment of an executor, or whether only a review application was permissible
• Whether the applicants established the requisites for an interdict, namely: a clear or prima facie right; well-grounded apprehension of irreparable harm; balance of convenience favouring the interdict; and no other satisfactory remedy
• Whether the Master could lawfully appoint a second executor to an estate that already had an Executrix Dative who had not been removed from office in terms of section 117(1) of the Administration of Estates Act
• Whether the beneficiaries and relatives of the deceased had locus standi to bring the application

The court granted the interim relief sought: (1) The 2nd respondent was interdicted from exercising any function, duty or responsibility of Executor Dative of the Estate; (2) The 2nd respondent was interdicted and prohibited from visiting any estate properties or interfering with the 2nd applicant's administration of the estate; (3) The 1st respondent was interdicted from permitting the 2nd respondent to perform any function or duty of Executor Dative. The interim relief was granted pending the return date for final determination.

The binding legal principles established are: (1) A decision of the Master of the High Court appointing an executor can be challenged by way of a court application for a declaratory order, not exclusively by review proceedings; (2) The Master cannot lawfully appoint a second executor to an estate where an Executrix/Executor Dative is already in office and has not been removed in terms of section 117(1) of the Administration of Estates Act; (3) Section 117(1) requires that for removal of an executor from office, it must be shown that the executor failed to perform satisfactorily any duty imposed by law and that the executor is no longer suitable to hold office; (4) Close relatives and beneficiaries of a deceased estate have locus standi to challenge the Master's appointment of an executor as they qualify as preferred executors under section 26 of the Administration of Estates Act; (5) The four requisites for an interdict (clear or prima facie right, well-grounded apprehension of irreparable harm, balance of convenience, and no other satisfactory remedy) apply to applications seeking to preserve the status quo in estate administration disputes.

The court observed that the 1st respondent's office (Master of the High Court) is a creature of statute and has no personal interest in such cases. The court also noted that if interim relief were declined, creditors would likely suffer from consequences of a hostile relationship between beneficiaries and the executor, and there was already friction over how income-generating projects under the estate were being managed. The judge expressed 'serious doubt on the correctness of the respondent's conclusion that 1st respondent's decision can never be challenged other than by way of an application for review,' suggesting broader skepticism about overly restrictive interpretations of procedural requirements in challenging administrative decisions affecting estates.

This case is significant in Zimbabwean estate administration law as it clarifies that decisions of the Master of the High Court regarding appointment of executors can be challenged through urgent chamber applications for declaratory orders, not exclusively through review proceedings. The judgment reinforces the principle established in Mutyasira v Gonyora that the Master cannot lawfully appoint a second executor when an existing executor has not been properly removed from office in terms of section 117(1) of the Administration of Estates Act. The case also affirms that beneficiaries and close relatives of a deceased estate have locus standi to challenge irregular appointments and protect the estate from dual administration. It provides important guidance on the application of interdict requirements in the context of estate administration disputes and emphasizes the need for the Master to follow proper statutory procedures before removing or replacing executors.