In the matter between-
Juliet Kadungure 1st Applicant
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Anderson Kadungure 2nd Applicant
Neria Kadungure 3rd Applicant
Patricia Darangwa 1st Respondent
Master of High Court of Zimbabwe 2nd Respondent
Juliet Kadungure’s founding affidavit
I, the undersigned Juliet Kadungure, do hereby make oath and state that: I am a female adult and the 1st Applicant in this application. The facts I depose to herein are personally known to me.
All legal conclusions contained herein are on the advice of and attributable to my legal practitioner’s record.
- The Parties
The 2nd Applicant is Anderson Kadungure. He is a male adult and the surviving biological father to one Genius Kadungure who died on November8, 2020 (hereinafter called ‘the deceased’)
The 3rd Applicant is Neria Kadungure, a female adult and surviving biological young sister to the deceased. I am the surviving biological elder sister to the deceased.
Anderson, Neria and I (hereinafter otherwise referred to as ‘the family’ are beneficiaries of the estate of the deceased as his surviving blood relatives.
The 1st Respondent is Patricia Darangwa, a female adult whose address of service is 5th floor, North Wing, Runhare House Cnr K Nkrumah ave/4th street, Harare.
She is currently the executrix appointed by the 2nd Respodent under DR No. 1771/20 to the estate of the deceased.
The Master of High Court of Zimbabwe is the 2nd Respondent. He is cited herein in his official capacity.
- Factual Background.
A conspectus of facts in support of this application as follows.
On November 8, 2020, one Genius Kadungure died in a car accident. The late Genius Kadungure was a businessman and popular figure, otherwise known in contemporary parlance as ‘a socialite’.
He had vast business interests, investments and assets in Zimbabwe, Botswana and South Africa. To this extent a lot of information about his personal, family, and business life abounds in the public domain, before and after his demise.
Whilst still gathered at the deceased’s homestead in Domboshava and before his burial, we were approached by Darangwa who indicated to the family that she was an attorney and in possession of the deceased’s will that he had left behind in her custody which among other things provided that he be the testamentary executrix to the deceased’s ’state.
The family was surprised by the news of the will since the deceased never mentioned anything to do with writing his own will to any member of the family.
We were therefore bewildered by the talk of a will, coming as it did amidst mourning, shock and immense media publicity due to the popularity of the deceased. In interactions between the family and Darangwa before and on November 25, we told her that we were not ready to quickly accept the will as having been made by the deceased.
On November 25, a meeting about the deceased’s estate was held at the Master of High Court’s office. Anderson, Neria, Darangwa and I attended the said meeting but before on the same day, Darangwa unduly influenced the family to accept the will and threatened that if as the family we chose to reject it and her executorship, we would have tarnished her reputation as a lawyer and she was prepared to sue us and subject the estate to unwanted delays even all the way up to Supreme Court level.
She in the same vein attempted placate the family by dangling an offer that the family should sign a special power of attorney entitling me to administer the entire estate of the deceased.
The family accepted the will and recommended her appointment in terms thereof as executrix testamentary only because Darangwa influenced us to do so.
When we suggested a need to seek legal advice before expressing our views about the will to the Master of High Court, Darangwa dissuaded us citing that that was unnecessary since we already had her as a lawyer.
The Master of High Court accepted the will, produced by Darangwa to be the deceased’s will in terms of section 8(5) of the Wills Act (6:06).
The Master of High Court also appointed Darangwa as testamentary executrix to the deceased’s estate in terms of the will that he had accepted.
The family worked with Darangwa from the date of her appointment as executrix testamentary, albeit reluctantly, simply because she is the de facto and current executrix testamentary to the deceased’s estate.
However, the family remained with unanswered questions regarding the said will, a copy of which she never furnished the family.
Sometime in January 2021 and after the national lockdown had been introduced, the family decided to get legal advice and engaged the current legal practitioners who advised us of the need to get a copy of the will first to analyze its contents as well as to get the minutes of the meeting of November 25 and other relevant information.
Darangwa refused to avail the will citing that her offices were closed due to the lockdown, we only got a copy of the will upon written request to the Master of High Court.
The Master of High Court availed to us the will that he accepted, the minues of what transpired on November 25, the inventory as well as the waiver of security contained in his records.
It is noteworthy that according to the minutes, the will was drafted by Darangwa, the same will confers an executorship benefit to her in terms of clause 2 thereof.
During the national lockdown, Darangwa attended to disposal of the deceased’s Lamborghini motor vehicle in hazy circumstances.
This Darangwa did without filing with the Master of High Court a detailed inventory of the deceased’s assets in terms of a distribution account that was never filed with nor approved by the Master of High Court.
This was without advertising the said distribution account in terms of which she sought to dispose of the said Lamborghini vehicle.
On February 7, 2021, our legal practitioner herein, Neria and I flew to Botswana to get an appreciation of the deceased’s company and the position of FNB Bank (Bostwana) with which the said company has an account.
The company has lines of credit extended to it for construction of a massive industrial complex in Botswana. It has a loan instalment arrears running into a third month now from December 2020 when its account got frozen.
The bank’s policy is that a customer that accumulates 3 consecutive months of loan arrears is automatically subjected to foreclosure for recovery of the debts.
After some bidding and pleading, FNB Bank placed a moratorium up to March 31, 2021 on the Quick Gases (Pty) Ltd account to allow resolution of the executorship and signatory issues.
The deceased left some assets in that country such as haulage trucks which are at the risk of alienation or disappearance if the executorship and will issues are not finalized expeditiously.
It is cumbersome for the family to work with Darangwa who it knows is illegitimate and on the basis of a counterfeit will.
Our legal practitioner and myself returned to the country on February 15, 2021. Neria returned on February 17. A few days after my return someone drew to my attention that Darangwa had went on to advertise the interim distribution account on February 5.
Sometime last year, Darangwa and I visited Botswana whereupon Darangwa was given a certificate of administration based on the letters of administration issued by Master of High Court.
However, the Master of High Court of Botswana rejected the will produced by Darangwa citing that it was not signed by the deceased. There is currently some litigation in the High Court of Botswana whereby Darangwa is fighting with one Leo Chiweshe over the legitimacy of Darangwa as testamentary executrix.
All applicants herein once supported Darangwa in Bostwana until February 2021 when we recanted what we had said in support of her after noticing the fakeness of the will that she produced.
The said matter is set for hearing on March 26, 2021.
Applicants seek an interdict in the interim prohibiting any administration of the deceased’s estate pending the return date upon which date a review of the Master of High Court’s decision to appoint Darangwa as testamentary executrix and to accept the will in question shall be sought.
I am advised that the review is in terms of Order 33 of this court’s rules and sought on grounds founded in terms of s27 of the High Court Act (7:06) as well at the common law.
We also seek that the review proceedings be prosecuted on terms to ensure expeditious resolution of the contestation involving the parties.
This matter cannot wait. It deserves the urgent attention of this court when one factors the following;
My father, my sister and I, as the surviving blood relatives of the deceased who died intestate, have a prima face right to inherit and benefit from the deceased’s estate.
We are entitled to protect our interest in the deceased’s estate in line with our constitutional right to equal benefit and protection of the law.
The document produced as the deceased’s will is a nullity as it does not meet the requirements of s8(1) and s8(5) of the Wills Act (6:06).
The testamentary executorship of Darangwa, emanating as it does from such a document, is also a nullity. All the acts of Darangwa regarding the deceased’s estate are a nullity. There is need to expeditiously stop Darangwa in her illegal tracks.
Darangwa is already in the process of permanently disposing of the deceased’s assets during and within the current national lockdown and without following due process of law, a case in point being her recent disposal of the deceased’s Lamborghini vehicle in terms of a distribution account which was neither availed to, nor approved by the Master of High Court and without a proper inventory.
The deceased’s biggest investment namely Quick Gases in Botswana, is at the risk of liquidation over a loan owing to FNB Bank, Botswana after it totally closed operations because the said bank froze the company’s account over issues respecting the legitimacy of Darangwa and who should be appointed as the signatory on the company account after the deceased’s demise.
FNB Bank, Botswana has given the family a period of only up to March 31, 2021 within which to exhaustively deal with the question of the legitimacy of the executrix and within which unquestionable signatories to the bank account as well as the company directors can be appointed.
Failure to deal with the issues highlighted is such that the company will be subjected to foreclosure and liquidation of assets by the said bank to recover the debt owing to it.
The gas business in Botswana is such that every gas company has its cylinders into which they exclusively fill gas when transacting with customers.
In other words, every company only sells gas by filling in a gas tank belonging to, every gas tank bears the colour and brand of the company from which it emanates, I have been informed by one of the company’s employees that already there are some malcontents who are mopping up the company’s branded cylinders from the customers for resale in Zimbabwe.
The end result is that if the company remains closed, by the time it reopens, its customer base will have drastically dwindled.
The company, at the time it closed operations, had more than 10 000 gas cylinders in circulation among its customers in Botswana.
Darangwa is dissipating the deceased’s estate to the permanent and irreparable prejudice of the family when her appointment as executrix by and the will she produced to the Master of High Court are both a nullity.
In any event, she never gave security to the Master of High Court for the faithful administration of the estate and she has up to now not supplied a comprehensive inventory of assets of the deceased.
The current Covid-19 national lockdown which proscribes the filing of new litigation continues to be extended with no certainty as to when exactly it will be uplifted.
In the circumstances, waiting to prosecute a review application on the ordinary roll can only be irreparably prejudicial to the family who risk losing many assets as well as inheriting a company reduced to a shell.
In the absence of a review of the Master of High Court’s decision, all the acts by Darangwa in Botswana become questionable considering that the Botswana authorities rejected the will in terms of which Darangwa was appointed testamentary executrix in Zimbabwe.
Darangwa has taken and continues to take the law into her own hands, she advertises an account during the lockdown, inviting people to come and inspect such account at the office of the Master of High Court which she knows is currently closed.
We have a reasonable apprehension of harm to our interests/rights given the circumstances explained above.
As the family, we have no other alternative remedy to protect our rights and avert the risk of dissipation of the estate and seek an expeditious review of the 2nd Respondent’s decision other than by manner of this application.
There is a real risk that in the absence of an order of this court, the 1st Respondent may continue to alienate/dispose of the deceased’s assets to our irreparable prejudice and that potential creditors.
In the circumstances, we as the family inter alia seek an interdict to stop all the acts of Darangwa regarding the deceased’s estate pending the return date to protect the estate’s assets and the interests of all persons that may have an interest therein. She cannot be trusted with the deceased’s estate.
I, together with the 2nd and 3rd Applicants, seek a review of the 2nd Respondent’s decision to accept the will produced by the 1st Respondent under DR No. 1771/20 as well as the decision to appoint 1st Respondent as testamentary executrix. The decision should be reviewed on the following grounds.
Illegality/Absence of Jurisdiction
I contend that the Master of High Court has no jurisdiction to accept as a will a document which was neither drafted nor executed/signed by a person who has since died (i.e the deceased); and the decision of the Master of High Court is illegal and contrary to s8(5) of the Wills Act (6:06). The decision is therefore a nullity.
The will accepted by the Master of High Court as the deceased’s is illegal and therefore a nullity. Even if this court were to hold that the will in question is the deceased’s, a look at the minutes of the Master of High Court shows that it (the will) was personally drafted/written out by Darangwa and confers upon her (1st Respondent) and executorship benefit.
This is proscribed by s6(2)( c) as read with s6(6) of the Wills Act (6:06). Therefore all of the 2nd Respondent’s decision predicated on the said will are also a nullity.
FRAUD, SPECULATION AND MALPRACTICE
The Master of High Court, under DR1771/20, accepted as the deceased’s will a document actuated by fraud, speculation and malpractice reckoning that such document was neither drafted nor executed by the deceased, not dated, is bereft of any exclusive/confidential details.
It contains details most, if not all, of which are too generalized and were already in the public/social media domain is imprecise in many respects and in some portions contains bequests to persons of non-existent/shadowy identity.
The deceased’s estate has been rocked by maneuvers by the 1st Respondent to dispose of a part of the deceased’s estate without following due process of law.
The Master of High Court made a grossly irregular and illegal decision of issuing Letters of Administration to and appointing as testamentary executrix, the 1st Respondent on the basis of a will that is null and void.
Such Letters of Administration should be revoked and annulled in terms of s30(1) of the Administration of Estates Act (6:01).
Just to expand on the ground I stated herein in paragraph 26.3 above, I am advised that the reason at law behind insistence on formalities prescribed in the Wills Act (6:06) is to ensure that wills are not penetrated by fraud, speculation or malpractice.
As earlier stated, the deceased was a popular figure, particularly in Zimbabwe and South Africa among other countries.
His life, business interests, names of his parents, siblings and friends, are in the public domain even up to today.
I believe that the will produced by Darangwa and accepted by the Master of High Court is actuated by fraud, speculation and malpractice for the following reasons:
..The haste with which the Darangwa is disposing of the Lamborghini (and hastily attending to anything to do with such disposal) without following due process of law leaves a lot to be desired.
It is inexplicable that Darangwa would invite creditors and debtors to inspect an account at the Master of High Court’s office regarding an asset whose disposal she has already authorized/instructed.
The will makes reference to some persons without stating their actual/official identities the deceased’s Lamborghini vehicle, arrived in Zimbabwe around 30 November September 2020.
If claims that he instructed Darangwa to draft a will are true, it is not logical that the deceased would bequeath such an expensive vehicle to a shadowy third party exactly 23 days after importing it the deceased had a fleet of expensive cars.
It is curious that none of the rest of his cars is mentioned in the will. Further, there is not even the registration number of the Lamborghini vehicle mentioned in the said will.
The lawyer always lied that she is an attorney until we recently found out that she is not. Her credibility is immediately called into question.
Darangwa never wanted to avail a copy of the will in question to us or to our legal practitioner until we got it through the Master of High Court.
The impugned decision of the Master of High Court and his appointment of the Darangwa cannot stand.
The court should declare that the deceased died intestate. He did not make/leave behind any will.
The produced will is fake. I pray it be declared null and void. I also seek revocation of Darangwa’s appointment as testamentary executrix, hence this application.
The court will notice that in the draft order we seek that this application be prosecuted on certain proposed terms.
This is so given the exigencies of this matter. We need closure within the shortest possible time also as the said moratorium of 31 March draws to a close each day that passersby.
Costs are sought on a higher scale of attorney and client should Darangwa oppose this application.
I infer that she as a professional executor ought to have known mundane law of succession that applies to the deceased’s estate.
The will she tendered to the Master of High Court is a nullity, so is her appointment as testamentary executrix.
Wrangling with the Applicants in the wake of clear and unambiguous dictates of law on the subject matter would be tantamount to abuse of court process by Darangwa and a waste of his court’s precious time.
Wherefore, I pray for an order in terms of the draft.