Virginia Chidhakwa (nee Machokoto) v Manala Loveness Motsi and Deputy Master of the High Court

Virginia Chidhakwa, daughter of the late Remusi Machokoto, applied for the removal of Manala Loveness Motsi as Executrix Dative of her late father's estate. Remusi Machokoto died on 7 January 2000, and his wife Mirriam was initially appointed Executrix. After Mirriam died on 4 July 2001, Martha Mataruka was appointed but also died before finalizing the estate. On 1 August 2014, the first respondent was appointed Executrix Dative. The applicant discovered in 2017 that the Pelandaba house had been sold without her knowledge. Despite the first respondent's appointment in 2014, by 2020 the estate remained unfinalized, Master's fees were unpaid, and the first respondent failed to account for rental income and proceeds from the sale of the Pelandaba property. The Deputy Master had written to the first respondent in July 2015 noting inordinate delay. The first respondent failed to attend meetings called by the Master's office and did not respond to correspondence from the applicant's lawyers. The first respondent claimed she lodged the first and final distribution account in January 2019, but the Master's report revealed it was only lodged on 10 March 2020, after the removal application was filed.

• Whether the applicant had locus standi to bring an application for removal of an executor under section 85(1) of the Administration of Estates Act, or whether only the Master could bring such application under section 117(1)
• Whether sufficient cause existed under section 85(1) of the Administration of Estates Act for the removal of the first respondent as Executrix Dative
• Whether the first respondent's conduct constituted a failure to properly administer the estate warranting her removal
• Whether beneficiaries have a common law right to apply for removal of an executor

The application was granted. The first respondent was removed as Executrix Dative to the estate of the late Remusi Machokoto. She was ordered to render a full account within 14 days of all money received from the sale of stand 61402 Pelandaba and all rentals collected from both properties from 1 August 2014 to the date of removal. Failure to render the account would allow the applicant and Deputy Master to refer the matter to law enforcement authorities. The first respondent was ordered to pay costs on an attorney and client scale in her personal capacity.

A beneficiary of an estate has locus standi at common law to apply to the High Court for removal of an executor under section 85(1) of the Administration of Estates Act, which grants the court power to remove an executor but does not limit who may bring such motion. Section 117(1), which gives exclusive rights to the Master in specific circumstances, does not preclude beneficiaries from approaching the court under section 85(1). The constitutional rights of access to courts under sections 69(3) and 85(2) support this interpretation. An executor will be removed under section 85(1) where there is sufficient cause, which includes: failure to finalize the estate expeditiously; failure to account for estate assets and income; selling estate property without establishing necessity; ignoring correspondence and meetings with the Master; and misrepresenting material facts under oath. The primary duty of an executor is to finalize the estate as quickly as possible, consult beneficiaries, and not dispose of more assets than absolutely necessary to meet estate obligations. Serious misconduct that prejudices the estate and beneficiaries warrants removal even if the administration is near completion.

The court expressed concern that the conduct of the first respondent bordered on fraud, noting "one smells a rat" in the manner she conducted herself. The judge questioned how the Deputy Master's office granted section 120 authority for sale of the Pelandaba house in November 2017 given the circumstances. The court observed that the role of an executor demands honesty, trustworthiness, competence and reliability, and the first respondent displayed none of these attributes. The judge noted it was baffling that the executor delegated duties to her husband and that this appeared to be treated as a "family affair." The court emphasized that allowing a transgressor to continue merely because harm has already been done would not serve justice; wrongdoers must be held to account and their prejudicial conduct mitigated as far as reasonably possible.

This case is significant in Zimbabwean law for clarifying that beneficiaries of an estate have locus standi at common law to apply for removal of an executor under section 85(1) of the Administration of Estates Act, and are not precluded merely because section 117(1) gives the Master exclusive powers in certain circumstances. The judgment reinforces constitutional rights of access to justice under sections 69(3) and 85(2) of the Constitution. It also provides comprehensive guidance on the duties and standards expected of executors, particularly the duty to finalize estates expeditiously, consult beneficiaries, account transparently, and act honestly. The case demonstrates that courts will not hesitate to remove executors who engage in serious misconduct, misrepresent facts under oath, or fail to discharge their fiduciary duties, and may impose punitive costs where opposition to removal is unmeritorious.