Noreen Chikaka N.O v Misheck Mukarati and Others

The applicant was executor of the estate of the late David Chirikure Mukarati who died on 22 October 1994. The estate was only registered on 7 March 2016, 22 years after the death. The deceased left an immovable property (house number 16286, Unit M, Seke, Chitungwiza) and was survived by two wives and several children, including the first and second respondents. The applicant allocated the immovable property to the two wives in equal shares relying on section 68(2)(ii) of the Administration of Estates Act. The distribution plan was confirmed by the Master on 4 November 2016. The property was subsequently sold to the fifth respondent. In May 2017, the first and second respondents filed an application for condonation of late filing of a review application (HC 3923/17), alleging the applicant wrongly applied the law by using the new law of inheritance when the deceased died before 1 November 1997. After filing their answering affidavit in June 2017, they failed to prosecute the matter for 17 months. The applicant then brought this application to dismiss HC 3923/17 for want of prosecution under Order 32 Rule 236(4)(b).

• Whether the matter should be dismissed for want of prosecution under Rule 236(4)(b)
• What factors should be considered in exercising discretion to dismiss for want of prosecution
• Whether the first and second respondents had prospects of success in their intended review application
• Whether the new law of inheritance (Amendment 6/1997) applied to estates of persons who died before 1 November 1997
• Whether the distribution plan was correctly based on section 68F(2)(c)(ii) or should have been based on customary law under the old section 68

1. The application dismissed with no order as to costs. 2. The 1st and 2nd respondents ordered to set down HC3923/17 within 30 days. 3. If 1st and 2nd respondents fail to comply, the applicant may set down HC 3923/17 in terms of Rule 223.

The Administration of Estates Amendment Act 6/1997, which commenced on 1 November 1997, does not apply to estates of persons who died before that date by virtue of section 6 of the Amendment Act. For estates of persons who died before 1 November 1997 and were married under customary law, the old section 68 of the Administration of Estates Act applies, requiring distribution according to customary law and tribal usages. In applications for dismissal for want of prosecution under Rule 236(4)(b), the court must exercise discretion considering: (a) the length of delay and explanation; (b) prospects of success on the merits; and (c) balance of convenience and prejudice. Dismissal for want of prosecution is a drastic remedy that should not be granted lightly as it potentially infringes on the constitutional right to a fair hearing under section 69 of the Constitution.

The court observed that dismissing a matter for lack of prosecution is a drastic remedy that should not be granted lightly. The court noted that although legal aid is available, every litigant has a right to be represented by a legal practitioner of their choice. The court commented that the applicant had discharged her obligations as executor unless the Master's decision confirming the estate account was set aside. The court directed the Registrar to bring the judgment to the attention of the Master, implicitly criticizing the Master's error in confirming a distribution plan based on the wrong law. The court noted that the dominant inheritance pattern under customary law was based on the male primogeniture rule, meaning the eldest son was the preferred heir, suggesting the first and second respondents (as sons) would have stronger claims under the correct law.

This case is significant in Zimbabwean succession law as it clarifies the temporal application of the Administration of Estates Amendment Act 6/1997 (the "new law of inheritance"). It establishes that the amendment does not apply retrospectively to estates of persons who died before 1 November 1997, and such estates must be administered under the old customary law principles including male primogeniture. The case also demonstrates the court's reluctance to dismiss matters for want of prosecution where there are prospects of success on the merits and constitutional rights to a fair hearing are engaged. It provides guidance on the exercise of judicial discretion under Rule 236(4)(b) and the three-factor test for dismissal for want of prosecution. The judgment highlights the importance of executors correctly applying the law based on the date of death, and that the Master's confirmation of a distribution plan does not cure a fundamental error of law.