Soneni Ndlovu (In her capacity as the Executrix Dative of the Estate Late Memory Ngwenya DRB 882/21) v BDP Investments (Pvt) Ltd and Others

The applicant was appointed Executrix Dative of the estate of the late Memory Ngwenya who died on 18 July 2021. Memory Ngwenya was a prominent business woman who owned various immovable properties in Bulawayo. A dispute arose between the applicant (representing Memory's wife) and the 2nd respondent (Tonderai Byron Rice) who had been living with the deceased. The applicant alleged that the 2nd respondent was merely a live-in boyfriend, while the 2nd respondent claimed he was customarily married to Memory and had paid lobola. The applicant alleged that the 2nd and 3rd respondents filed fraudulent annual returns for the 1st respondent (BDP Investments) between 4 February and 24 March 2022, and she reported this to police in March 2022. The applicant sought to interdict the 2nd and 3rd respondents from representing the 1st respondent as directors and to have herself appointed as director. Multiple cases were pending in the court relating to control of the estate, including HC 1067/22 which sought similar relief.

• Whether the certificate of urgency was valid and whether the legal practitioner properly applied his mind to the issue of urgency
• Whether the matter was genuinely urgent given the delay in approaching the court
• Whether there were material disputes of fact that could not be resolved on the papers
• Whether the order sought was competent, particularly regarding the appointment of an executrix as director of a company
• Whether the interim relief sought was actually final in nature

1. The matter is not urgent. 2. The matter be and is hereby struck off the roll of urgent matters. 3. The applicant shall bear the costs of suit.

1. A certificate of urgency is fatally defective where the certifying legal practitioner does not apply his mind to the issue of urgency, particularly where there is no explanation for delays in approaching the court after the need to act arose. 2. An applicant who fails to act urgently after becoming aware of the facts giving rise to the alleged urgency cannot successfully invoke the court's urgent jurisdiction. 3. Material disputes of fact, particularly regarding fraud, forged signatures, and disputed factual relationships, cannot be resolved on motion proceedings and require oral evidence. 4. An executrix of an estate does not have the power to unprocedurally take over the directorship of a company in which the deceased held shares, as the company is a separate legal persona with directors appointed under the relevant corporate legislation. 5. Courts will not grant relief that is final in nature when it is disguised or presented as interim relief.

The court observed that multiple cases were pending relating to the battle for control of the late Memory Ngwenya's estate, noting that there was a 'bitter struggle' and 'flurry of cases' being filed. The court noted that the applicant appeared to be attempting to use the court to 'sanitize usurping power and control' of the 1st respondent company on a permanent basis, which was outside her functions and powers as executrix. The court also observed that interference with the operations of the company was not in the interests of the beneficiaries of the estate. The judgment contains implicit criticism of the attempt to obtain final relief through an urgent application while a similar court application (HC 1067/22) seeking the same substantive relief was already pending.

This case reinforces important procedural principles in Zimbabwean law regarding urgent applications. It demonstrates that courts will carefully scrutinize certificates of urgency and will not tolerate applicants who fail to explain delays or who do not treat matters as genuinely urgent. The case also illustrates the principle that the motion procedure is inappropriate where there are material disputes of fact requiring oral evidence, and that courts will not grant final relief disguised as interim relief. The judgment clarifies the limits of an executor's powers, particularly that an executrix cannot unprocedurally interfere with the directorship of a company merely because shares in that company form part of the deceased estate.