Scholastica Zvandaitabha and Nicholas Jingo v Grace Bheta and Others

The first applicant alleged she was married to the late Emmanuel Beta in the 1960s and had acquired Stand no. 6307 Highfield Township Harare with him. The second applicant was their son. The couple separated in the late 1960s. In the 1970s, Emmanuel Beta married the first respondent (Grace Bheta). The first applicant claimed she later reconciled with the deceased, resulting in both women being married to him at his death in 2006. After the deceased's death, applicants had the second applicant appointed as executor and registered the property in the first applicant's name. The first respondent successfully challenged this and had an independent executor appointed. The deceased left a Will which was accepted by the Master in September 2007 under section 8(5) of the Wills Act. The executor prepared an interim administration and distribution account in terms of the Will, awarding the property to the first respondent. Despite knowing about the Will's acceptance from at least January 2010 (as evidenced by correspondence), applicants claimed they only became aware in February 2011. They never challenged the Will itself but sought to review the distribution plan. The application for review was filed outside the 8-week period prescribed by Order 33 Rule 259, necessitating this application for condonation.

• Whether the applicants had shown good cause for condonation of the late noting of an application for review under Order 33 Rule 259 of the High Court Rules
• Whether the Master's acceptance of a distribution plan prepared in accordance with a validly accepted Will could constitute an illegality or irregularity justifying review
• Whether the applicants had prospects of success in the main application for review
• Whether costs de bonis propriis should be awarded against the applicants' legal practitioners

The application for condonation was dismissed with the applicants' legal practitioners (Mabuye Zvarevashe) ordered to pay costs de bonis propriis on the attorney-client scale.

Where the Master has accepted a document as a Will under section 8(5) of the Wills Act and no challenge is brought within the 30-day period prescribed by section 8(6), the estate must be administered according to that Will. The Master's acceptance of a distribution plan that conforms to a validly accepted Will does not constitute an illegality or irregularity that can be challenged by way of review under Order 33 Rule 259. An attempt to challenge the consequences of a Will's acceptance without challenging the validity of the Will itself or the Master's decision to accept it has no prospects of success. For condonation to be granted under Order 33 Rule 259, applicants must show good cause, which includes considering prospects of success on the merits, and where there are no prospects of success, condonation will be refused regardless of other factors. Section 68A(2) of the Administration of Estates Act excludes considerations outside a Will from applying to estates disposed of by Will.

The Court observed that the applicants were not candid with the court about when they became aware of the Will's acceptance and the distribution plan, as evidenced by correspondence that contradicted their affidavit. The Court noted that in deciding whether to award costs de bonis propriis, courts should only resort to such orders in rare instances where the justice of the case calls for such censure on legal practitioners. The Court commented that having filed a fatally defective first application which was pursued for two years only to be struck off for non-compliance, the legal practitioners should have been wiser in the second application but were not. The Court expressed the view that it would be unjust to continue to saddle the applicants with punitive costs where their legal practitioners had failed them and led them on a 'wild goose chase.'

This case is significant in Zimbabwean law for several reasons: (1) It clarifies the limited scope for reviewing estate distribution plans that are prepared in accordance with Wills validly accepted by the Master under section 8(5) of the Wills Act; (2) It emphasizes that challenges to the validity of Wills must be brought within the 30-day period prescribed by section 8(6) of the Wills Act, and failure to do so is fatal to subsequent attempts to challenge the consequences of such Wills; (3) It demonstrates the application of section 68A(2) of the Administration of Estates Act, which limits the Master's discretion when an estate is disposed of by Will; (4) It reinforces the principles for assessing 'good cause' for condonation, particularly emphasizing that prospects of success on the merits are crucial; (5) It provides guidance on when costs de bonis propriis are appropriate, particularly where legal practitioners pursue obviously futile litigation and fail to properly advise their clients, resulting in abuse of court process. The case serves as a warning to legal practitioners about their duty to properly advise clients and avoid frivolous litigation.