Patricia Darangwa v Juliet Kadungure and Others

Genius Kadungure, a prominent businessman with interests in Zimbabwe, Botswana and South Africa, died in a motor vehicle accident on 8 November 2020 at age 36. At his funeral, the appellant, Patricia Darangwa, an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the deceased's family (the respondents - his two sisters and father) with an unsigned "will" allegedly prepared by her on the deceased's instructions weeks before his death. She persuaded them to accept the unsigned document and her appointment as executrix. The Master of the High Court appointed her as executrix and issued letters of administration on 1 December 2020. The appellant immediately proceeded to entertain a claim for a Lamborghini Aventador Roadster belonging to the estate from one Nomatter Zinyengere (who was not mentioned in the unsigned will), sending him a "first interim liquidation and distribution account" demanding $48,230.00 for release of the vehicle, without reference to the Master and without proper approval. When the deceased's relatives sought legal advice and requested copies of the will and meeting minutes, which they only obtained from the Master's Office, they brought an urgent application to interdict the appellant from administering the estate and to review the Master's decision to accept the unsigned document as a valid will.

• Whether the court a quo erred in finding that the application was urgent
• Whether the court a quo erred in granting an interim interdict prohibiting the appellant from administering the deceased estate
• Whether the court a quo properly exercised its discretion to condone a departure from court rules by accepting a combined urgent chamber application with a review application
• Whether new grounds of appeal (non-joinder and procedural irregularity) can be raised for the first time on appeal when not pleaded in the court below
• Whether the requirements for granting a temporary interdict were satisfied

The appeal was dismissed with costs. The interim interdict granted by the High Court prohibiting the appellant from administering the estate of the late Genius Kadungure was upheld pending determination of the review application on the return date.

The binding legal principles established are: (1) A court has discretion under Rule 4C to condone departures from procedural rules where circumstances justify it, particularly in exceptional situations like COVID-19 lockdown restrictions, and such exercise of discretion will not be interfered with on appeal absent a showing that it was unreasonable or irrational; (2) Court rules are designed for the benefit of the court and proper administration of justice, not as immutable "laws of Medes and Persians" to be observed for their own sake; (3) The Supreme Court will not entertain new grounds of appeal or new issues raised for the first time on appeal that were not pleaded, argued or canvassed in the court below, as it is not a court of first instance; (4) A litigant who has not made a case in the court below will not be allowed to smuggle such case in on appeal; (5) An interim interdict is appropriate to protect a deceased estate where an unsigned document of questionable authenticity is being used to administer the estate and the executrix has demonstrated conduct indicative of irregular administration, pending judicial investigation of the document's validity; (6) Initial acceptance of a testamentary document by beneficiaries does not preclude them from later challenging its validity when new facts emerge.

The Court noted that the grounds of appeal were argumentative in nature and could have been couched in more elegant terms. The Court observed that grounds of appeal must be clear and concise under Rule 44(1) of the Supreme Court Rules, 2018, to enable respondents and the court to be fully informed of the appellant's case. The judge a quo made an important observation that the case was "peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent application," indicating that the procedural departure was permitted only due to the exceptional COVID-19 circumstances. The Court made the general observation that where a person is administering an estate for the benefit of beneficiaries, "surely she should not have any problems submitting herself to judicial scrutiny." The Court characterized the matter as not being a "touch-is-a-move game of draft in which the stakes turn against the player once he or she touches the lid," emphasizing that where new facts emerge, the court should be engaged to solve the issues regardless of initial acceptance.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It affirms the court's inherent power to condone departures from procedural rules in exceptional circumstances such as COVID-19 lockdown restrictions, emphasizing that rules are tools for justice administration and not ends in themselves; (2) It demonstrates the court's willingness to protect deceased estates from irregular administration, particularly where unsigned documents are being used as wills and executors are attempting to dispose of estate property without following proper procedures required by the Administration of Estates Act; (3) It reinforces the principle that the Supreme Court is not a court of first instance and will not entertain new grounds or issues raised for the first time on appeal that were not pleaded or argued in the court below; (4) It clarifies the requirements and circumstances for granting interim interdicts in estate administration matters where the validity of testamentary documents is in question; (5) It emphasizes the protective role of the courts in estate administration to safeguard the interests of beneficiaries against potentially irregular conduct by executors.