Manala Loveness Motsi v Gamila Atwa Ibrahim Elzont (Executor in the Estate late John Joseph Manolakakis) and Others

The applicant was appointed curator bonis in the Estate of the Late John Joseph Manolakakis on 12 November 2014 in terms of the Administration of Estates Act (Chapter 6:01). The applicant claimed fees totaling US$59,131.25 on appointment, an additional US$59,131.25 on the final account, and US$5,913.00 in respect of sundries. The curator's fees were lodged on 16 May 2016. The 1st respondent, who was the Executrix Dative of the estate, challenged the propriety of the fees, claiming they were excessive and would deplete the entire estate. A First and Final Distribution Account was filed with the Master and approved on 15 November 2016. The applicant then filed an urgent chamber application on 17 November 2016 seeking interim relief including suspension of all dealings related to the estate, removal of the 1st respondent as Executrix Dative, and caveats over estate properties. Various correspondence had been exchanged between the parties and the Master regarding the dispute.

• Whether the matter met the requirements for treatment as an urgent application
• Whether the applicant had an alternative remedy available
• Whether the relief sought (removal of Executrix Dative) was appropriate given the nature of the dispute (curator's fees)
• Whether the curator's fees claimed were excessive

1. The application was dismissed. 2. The applicant was ordered to bear the costs of suit.

An urgent application will be dismissed where: (1) the applicant has an alternative remedy available (in this case, taxation of curator's fees by the Master); (2) the matter does not genuinely require urgent treatment, particularly where the dispute has been ongoing for an extended period (in this case, since May 2016); and (3) the relief sought is disproportionate to the actual dispute and appears designed to achieve collateral purposes (seeking removal of executrix when the real issue is fee dispute). The court will not entertain urgent applications that are merely attempts to circumvent proper processes or that do not benefit the estate and its beneficiaries.

The court made non-binding observations that the curator's fees totaling over US$118,000 plus sundries were "simply staggering and have the effect of depriving the beneficiaries of any financial benefit." The judge also observed that "the dispute over the curator's fees has become so bitter and ferocious that this application is an attempt to prevent the winding-up of the estate" and that "the state of affairs does not benefit the beneficiaries." These comments, while not forming the basis of the decision, suggest judicial concern about excessive curator fees and the importance of protecting estate beneficiaries from such depletion. The court also noted that "the Master ought to have the curator's fees properly taxed," indicating the proper procedure that should have been followed.

This case serves as an important reminder in Zimbabwean law (applicable to South African jurisprudence by analogy) that: (1) applications will not be treated as urgent merely because they are labeled as such - the matter must genuinely require urgent attention and not be the result of the applicant's own delay; (2) where an alternative remedy exists (such as taxation of fees by the Master), a party cannot circumvent that remedy by bringing urgent relief seeking other orders; (3) curators bonis must exercise restraint in claiming fees that would effectively deplete an estate to the detriment of beneficiaries; and (4) relief sought must be proportionate and directly related to the actual dispute - seeking removal of an executrix when the real issue is fee dispute is inappropriate. The case reinforces the gatekeeping function of courts in preventing abuse of urgent application procedures.