Woman sues govt over deceased estates administration

Government has been taken to court over its decision to centralise applications for administration of deceased estates at the High Court’s Blantyre district registry, a move seen as a barrier to access to justice.

In her challenge, Lilongwe-based Violin Mhango Majanga argues that the court ruling on the issue is a violation of people’s constitutional right to access to justice.

The High Court in Lilongwe has been turning away probate applications to comply with Rule 2 (2) of the High Court (Procedure in District Registries) which states that a person can only obtain letters of administration for an estate at the High Court in Blantyre.

This follows a Supreme Court ruling in a case in which lawyer Francis Ndende and his law firm Frank Franklin and Company sued children of former president the late Bingu wa Mutharika—Tapiwa and Duwa—claiming K3.5 billion as fees for obtaining letters of adminstration for Mutharika’s estate estimated at K61 billion. However, the Bingu estate contends that the K61 billion value is an exaggeration.

The Supreme Court, comprising Justices of Appeal Jane Ansah, Anaclet Chipeta and Frank Kapanda quashed the decision of the High Court Commercial Division, arguing that the High Court in Zomba where Ndende obtained the letters of adminstration did not have jurisdiction according to Rule 2 (2) of the Courts (High Court) (Procedure in District Registries) Rules.

Argued the judges: “We cannot afford to have records of probate matters scattered all over the country in various registries of the High Court of Malawi. It would be difficult for those wishing to access probate records if we allowed that this information should not be at a central point.”

But in her challenge to the rule, according to Civil Cause number 320 of 2015 between Majanga and the Attorney General as defendant, Majanga said she approached lawyer Khumbo Soko to make a probate application in respect of the late Lyford Kaliyeka and he offered to do it pro bono  (without a fee). To her dismay, however, she was later informed that the High Court in Lilongwe was no longer entertaining such applications.

She said: “Making my contemplated probate application in the Principal Registry [Blantyre] will put me to great expense as it will require me to either source funds for my counsel to travel to Blantyre to attend to the application or indeed for him to arrange for a Blantyre based legal practitioner to attend to the matter.

“I state that the said rule unlawfully violates my right to access justice before the High Court Judges resident at the district registry here in Lilongwe, whose constitutional competence is at par with those judges resident at the Principal Registry.”

Soko confirmed in an interview yesterday that he filed the challenge on behalf of his client last week asking the court to determine whether the rule was consistent with Section 41 (2) of the Constitution which states that every Malawian has access to justice.

The rule came into effect before the 1994 Constitution, but has not been practised until the Ndende case which prompted the High Court in Lilongwe to turn away people.

Soko said it has been common practice for other registries apart from Blantyre to handle such cases citing the estate of the late president Hastings Kamuzu Banda which was before the High Court in Lilongwe.

Ministry of Justice and Constitutional Affairs spokesperson Apoche Itimu said the office of Attorney General was yet to respond to the claim, but added they would formulate a legal position after liaising with the Administrator General’s department which deals with deceased estates.