Julian Martin Hamilton Barns v Emmanuel Ngwarati and Others

The applicant and the deceased (Phillip Mugadza) were in business together, transacting through Kariba Resources Limited. The applicant became aware that the deceased faced financial difficulties and his property (14171 Gunhill, Harare) was at risk of foreclosure due to non-servicing of a loan to the 2nd respondent (African Banking Corporation). The applicant claimed he took over loan payments totaling USD 193,600 and made various other payments to the deceased. After the deceased's death, the applicant lodged a claim against the estate (DR 1174/2020) through the 1st respondent (executor dative). The 1st respondent rejected the claim citing lack of supporting documents, lack of evidence of a lending agreement, payments made by third parties (Kariba Resources Limited) to third parties (not the deceased), and prescription. The applicant sought a court order compelling the 1st respondent to register him as a secured creditor of the estate.

• Whether the court has jurisdiction to compel an executor to accept a rejected claim against a deceased estate
• Whether the application was competent or amounted to a disguised review application
• The proper procedure for lodging and adjudicating claims against deceased estates under the Administration of Estates Act [Chapter 6:01]
• The role and powers of an executor in accepting or rejecting claims
• Whether the applicant had locus standi to claim payments made by Kariba Resources Limited
• Whether the remedy sought (compelling registration as a secured creditor) was appropriate

1. The application is dismissed. 2. Each party will bear their own costs.

A court cannot compel an executor to accept a rejected claim against a deceased estate by way of a court application framed as an order to compel registration as a creditor. An executor has quasi-judicial powers as the first adjudicating authority in assessing claims under the Administration of Estates Act [Chapter 6:01], including powers under sections 43, 45, 47, and 48 to advertise for claims, rank them, request solemn declarations, and accept or reject claims. The court cannot substitute itself for the executor in this statutory role. Where an executor rejects a claim and provides reasons for rejection, the proper remedy is not to seek a mandatory order compelling acceptance, but rather to challenge the executor's decision through appropriate proceedings (such as review). An application seeking to compel registration as a secured creditor without going through the proper statutory process of claim assessment, ranking, and liquidation account is incompetent.

The court observed that Zimbabwe lacks the elaborate procedure found in South African law (Administration of Estates Act, 1965, sections 31-33) for dealing with rejected claims and late claims. The court noted that had the proper procedure been followed, the executor may have requested a solemn declaration under section 47. The court commented that the issue of locus standi regarding claims by Kariba Resources Limited was a matter for the executor to determine, not the court at this stage. The court remarked that the assertion that the estate had been wound up should have been raised earlier and proven by the 1st respondent, though it was potentially a legal issue that could be raised at any time. The court criticized both legal practitioners for failing to identify the critical issue that the court cannot act as executor and is not the first adjudicator of claims. The court noted that annexures cannot be attached to answering affidavits without leave of court, citing Nashe Family Trust vs. Chiwara and ors, 2018(1) ZLR 212. The court made a costs order that each party bear its own costs due to the failure of legal practitioners on both sides to properly apply their minds to the critical legal issues.

This case is significant in Zimbabwean succession law as it clarifies the limited role of courts in interfering with an executor's quasi-judicial function of assessing and accepting or rejecting claims against deceased estates. It emphasizes that courts cannot substitute themselves for executors in the claims assessment process. The judgment provides comprehensive guidance on the proper procedure for lodging claims under the Administration of Estates Act [Chapter 6:01] and the executor's powers and duties. It highlights a gap in Zimbabwean law (compared to South African law) regarding the procedure for dealing with rejected claims. The case serves as an important reminder that applications must be properly framed—seeking to compel acceptance of a claim is different from seeking review of a decision to reject a claim. The judgment also addresses the dearth of case law in this area of Zimbabwean succession law.