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SENATE HANSARD 23 JULY 2024 VOL 33 NO 68
PARLIAMENT OF ZIMBABWE
Tuesday, 23rd July, 2024
The Senate met at Half-past Two o’clock p.m.
PRAYERS
(THE HON. DEPUTY PRESIDENT OF SENATE in the Chair)
ANNOUNCEMENT BY THE HON. DEPUTY PRESIDENT OF SENATE
CHANGES TO THE MEMBERSHIP OF THEMATIC COMMITTEES
THE HON. DEPUTY PRESIDENT OF SENATE: Good afternoon Hon. Senators. I have an announcement. I wish to inform the Senate that the Committee on Standing Rules and Orders met on Thursday, 18th July, 2024 and made the following changes to the membership of Thematic Committees. They are as follows:- Hon. S. Tshabangu will serve on the Thematic Committees on Climate Change and Peace and Security; Hon. Sen. N. Mlotshwa will serve on the Thematic Committee on Human Rights; Hon. Sen. K. Phulu will serve on the Thematic Committee on Human Rights as well as the Sustainable Development Goals Committee; Hon. Sen. C. Ndlovu will serve on the Thematic Committee on Indigenisation and Empowerment as well as the Human Rights Committee; Hon. Sen. L. Mlilo will serve on the Thematic Committee on HIV and AIDS as well as the Gender and Development Committee; Hon. Sen. T. Kabondo will serve on the Thematic Committee on HIV and AIDS as well as the Gender and Development Committee; Hon. Sen. L. Sibanda will serve on the Thematic Committee on Climate Change as well as the Indigenisation and Empowerment Committee; Hon. Sen. G. Mpande will serve on the Thematic Committee on Gender and Development as well as the Human Rights Committee; Hon. Sen. S. Chapfudza will serve on the Thematic Committee on Peace and Security as well as the Climate Change Committee; Hon. Sen. M. Mdhluri will serve on the Thematic Committee on Sustainable Development Goals as well as the Climate Change Committee; Hon. Sen. Solani Moyo will serve on the Thematic Committee on Culture and Heritage; Hon. Sen. S. Ndebele will serve on the Thematic Committee on Human Rights; Hon. Sen. Tawanda Bvumo will serve on the Thematic Committee on HIV and AIDS as well as the Climate Change Committee; Hon. Sen. Moses Manyengavana will serve on the Thematic Committee on Peace and Security as well as the HIV and AIDS Committee; Hon. Sen. Tambudzai Kunaka will serve on the Thematic Committee on Indigenisation and Empowerment as well as the Culture and Heritage Committee and Hon. Sen. Spiwe Munemo will serve on the Thematic Committee on HIV and AIDS as well as the Peace and Security Committee.
MOTION
APPROVAL FOR THE RATIFICATION OF THE SADC PROTOCOL ON INDUSTRY
THE DEPUTY MINISTER OF INDUSTRY AND COMMERCE (HON. MODI): Thank you Hon. President Sir. I rise to present the motion that;
WHEREAS Section 327 (2) of the Constitution of Zimbabwe provides that any international treaty which has been concluded by or under the authority of the President does not bind Zimbabwe until it has been approved by Parliament;
AND WHEREAS the Republic of Zimbabwe signed the SADC Protocol on Industry on the 18th of August 2019. Zimbabwe is yet to ratify the Protocol;
AND WHEREAS the Protocol will only enter into force thirty (30) days after two thirds of the Member States have deposited their instruments of ratification. To date, only six (6) of the sixteen (16) Member States that signed the Protocol have completed the ratification process;
AND WHEREAS the Republic of Zimbabwe is desirous to ratify the said Protocol;
NOW, THEREFORE, in terms of section 327 (2) of the Constitution of Zimbabwe, this House resolves that the aforesaid Protocol be and is hereby approved.
Motion put and agreed to.
MOTION
APPROVAL FOR THE RATIFICATION OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC) PROTOCOL ON ENVIRONMENTAL MANAGEMENT FOR SUSTAINABLE DEVELOPMENT
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): I move the motion standing in my name that: -
WHEREAS Section 327(2) of the Constitution of Zimbabwe provides that any international treaty which has been concluded by or executed by the President’s Authority does not bind Zimbabwe until it has been approved by Parliament;
WHEREAS Zimbabwe signed the Southern African Development Community (SADC) Protocol on Environmental Management for Sustainable Development on 18 August 2014, along with eight (8) other SADC Members States;
WHEREAS the Protocol will enter into force thirty (30) days after the deposit of instruments of ratification by two-thirds of the SADC Member States.
AND WHEREAS to date, four Member States have ratified the Protocol;
NOW THEREFORE, in terms of Section 327(2) of the Constitution, this House resolves that the aforesaid Protocol be and is hereby approved.
Motion put and agreed to.
MOTION
BUSINESS OF THE HOUSE
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Mr. President Sir, I want to move that Order of the Day, Number 3 be stood over until Order of the Day Number 4 has been disposed of.
Motion put and agreed to.
SECOND READING
ADMINISTRATION OF ESTATES AMENDMENT BILL [H. B. 3A, 2024]
Fourth Order read: Second Reading: Administration of Estates Amendment Bill [H. B. 3A, 2024].
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you Mr. President Sir. It is a great honour to rise and present to you the Second Reading speech on the Administration of Estates Amendment Bill. The Bill before you today is necessary as it seeks to provide for the better and autonomous administration of the office of the Master of the High Court and to enable the office to better serve the people of Zimbabwe efficiently in a decentralised manner.
Mr. President Sir, accountability and efficiency are necessary for such an office whose responsibility among others, is to cater for our widows, widowers and orphans. Clause 3 of the Bill introduces the setting up of a board which will govern the office of the Master. This clause provides that the offices and office of record whereby all records are kept and may be transferred to any other place under the direction of the Master, thus, ensuring accountability within the office.
To ensure efficiency through decentralisation, documents which required to be lodged with the Master can also be lodged with the assistant Master in provinces, which goes to show that the public outcry has been heard. The clause also provided for a new section, section 4 (a) where the aforementioned board and appointment is established.
To that end, within the appointment of the board, there shall be regard to Section 17 and 18 of the Constitution which speaks to gender balance and fair regional representation. It is necessary to note that the Master shall also be an ex-officio member of the board, given the specialised and technical nature of the office functions, whereby the incorporation of an inside senior and experienced member will certainly add value to the board deliberations due to their better understanding of the organisational culture, technicalities and operational dynamics. Their insights will be valuable to enable better service delivery.
The functions of the board are also provided for, which include administering and supervising of the office of the Master, the appointment of members of staff and dealing with complaints or grievances made by or against members of the office among others. In light of the above, the board is not subject to the control or direction of any person or authority other than for audit purposes.
However, the Bill does empower the Minister to give policy directions to the board in his capacity or in her capacity as policy maker, but within the scope of the minister’s portfolio and subject to certain specifications. The Bill also provides for the continuation of the guardian’s fund under the operation of audience No. 105, of the Cape of Good Hope, to cater for all who are legally incapable or do not have the capacity to manage their affairs and proper accounts shall be opened in respect of the above.
The issue of accountability and transparency is also buttressed in the Bill under Section 4 (c) which provides that the office shall submit annual reports to the Minister who shall lay the reports before Parliament as oversight is a constitutionally mandated function of this House, this will allow the House to assess and scrutinise the implementation of this Act once enforced, as well as the application of the budget and the effective management and administration of the office.
In addition, Mr. President, the appointment of an Auditor to examine the office’s books of accounts and the Guardian’s Fund speaks to the office being held accountable in its operations as failure to produce required documents to the Auditor General is deemed an offence under the Bill.
Mr. President Sir, for an office to be operational, source of funds are an integral part and the Bill provides that the office’s source of funds will include funds from Treasury and fees that are accrued to the office in the course of its operations. As a Government, we have found it necessary for the office of the Master to be administered autonomously in a decentralized manner to ensure better service delivery nationwide and that no one is left behind in regards to accessing the services of the office of the Master, thus within the allocation of funds from Treasury and fees accrued from operations the burden on the ordinary citizen will not be increased, contrary to the general perception.
In addition, the Master’s office through the Board may make regulations for any matter required or permitted by this Act or is deemed necessary or convenient for carrying out into effect this Act and generally for the management and good conduct of business of the Master’s office. Currently, the Principal Act conditions of service of members and employees of the Master are governed by regulations made by the Judicial Service Commission. However, this Bill will now incorporate and empower the Minister specific power to make regulations as an autonomous office as it would be necessary where this Bill be passed in this House.
In consideration of the above, I urge Hon. Senators to support the Bill as it is the right step towards innovation and easy of doing business for better service delivery within the office of the Master of the High Court. In addition, the other reason why we wanted to separate the office of the Master from the Judicial Service Commission is being under the Judicial Service Commission any complaints that rose that need to be placed before the courts would technically be placed before the very same people who are doing the work of the work of the office of the Master and hence the need now to separate it so that the office of the Master will then be a stand-alone. When disputes arise, they go to courts which are independent from the office of the Master. Currently the position that was prevailing is the same employer is the one that was employing officers of JSC and the Office of the Master and they reported to the same secretariat, so there was some confliction in terms of the functions of the Master’s office and that of the JSC.
Having said that, I now move that the Bill be now read a second time.
*HON. SEN GOTORA: Thank you Mr. President, let me start by appreciating this opportunity to add my voice. We were given the opportunity to move around the country talking to people and the feedback we got from the people regarding the separation of the Master’s office from the JSC is like a situation where a football player becomes the referee. Now what it means is that those who will be playing football will be playing football and the referees will be doing their particular role. The separation of roles where the Master’s office is a stand-alone office with its own Board. People expressed their joy in that it is a Board which will be like other boards in the country which will be reporting to the respective Minister of the line Ministry where they will be giving feedback and the Minister will be the responsible for guidelines and supervision.
The third thing is that we did not know issues regarding the inheritance particularly for those who own properties in urban areas, they would hear that their houses were sold. For them to go to the courts to challenge the decision by the master, they would find that the person who would have done that will be in court so they are happy because the law frees them because when they were together with the Ministry of Justice this was perpetuating corruption. They also said that this Board and workers of the Master of the High Court will be accountable and there will be transparency in their operations. The monies they will be handling will be audited separate from what was happening through the JSC. What it means now is the issue of transparency is clear, that is why they were satisfied with that so that if something happens, financially if there is any fraud or if anything happens regarding the Master’s office then they can take the issue to the JSC, the courts because now there is separation of roles; the Master is now standing alone. So the people’s concerns where that if there is money from the fiscus, how about the fees that are being mentioned, is it not going to burden those who are poor because the fees have not been gazetted so they do not know how much they will be and since the board is there and the board will be looking for money for operations. The question regarding fees is a pertinent question which was raised by people and the question is how much the money will be and what the money will be used to do but they were so satisfied with the rest of the things and they say this is a good Bill. I thank you.
HON. SEN. PHULU: Thank you Mr. President. I would like to welcome the move to closely look into our inheritance laws, particularly the Administration of Estates Act as it stands. However, before I launch into my debate, I want to make a few observations that will put us all in context.
THE HON. DEPUTY PRESIDENT OF SENATE: Is your microphone on?
HON. SEN. PHULU: Modern inheritance tax has to be taken into context and particularly, the major issue is the death tax or the tax on estates, but the other issue to which the Minister has ably raised is to do with the administration of estates. Certainly, the thrust one can see is to ensure that administration of estates is made easier, becomes transparent and yes, the whole idea of separating the Masters Office from the Judicial Services Commission so that the Judicial Services Commission is able to act and not act in its own case, is welcome and applauded.
There also have been many complaints in the manner in which these estates are run. One of the major complaints has been the conduct of officials in the Masters Office, not all of them, not all the time, but sometimes where small estates lose property as a result of the Master deciding to sell these properties mainly on the behest of executors. It depends on what kind of executor you have. You might have someone from your family whom you have appointed or you might have a professional executor who has been appointed by the Master, especially in those estates where people do not know what to do and they lie in ambience for a long period of time. The Master has the discretion to then appoint the professional executors to ensure that these estates are wound up so that administration is finalised and that the Government might also get its taxes and the executors get paid.
Sometimes these executors become greedy Mr. President, and the main target is to sell something so that fees maybe realised by the executor himself. We would want the Minister, as they deal with this Act, to look at that kind of scenario in that people want more and more accountability, better accountability. We want more judicial review in some of these decisions that are made between the Master and the executors.
What I have seen just looking at the few sections that I have gone through, there is a tendency, particularly Section 26, there is a tendency to make it very difficult to review the decisions of the Master because it says that once the Master makes a decision on the appointment of an executor and somebody is not happy, whether in the family or it is a creditor, that person cannot make the complaint unless he goes around gathering every other interested person to file an affidavit together. It is only then that the judge may give the matter a thought. I was wondering why that hurdle is being put in place which makes judicial review more difficult as opposed to easier because it is impossible to get every interested party to agree to sign one affidavit. It is an impossibility. It really gives the Master a free pass in terms of the decisions that he makes because effectively even if a court can see an injustice, as long as they have not all signed together, the court is debarred from hearing the matter.
I would want maybe when we get into the Committee Stage, to have a closer look at the crafting of that section so that it promotes judicial review rather than waters it down because I think the thrust of the Minister’s presentation was to say, we want greater accountability and certainly, that must mean we want greater judicial review in line with Section 64 of the Constitution, which gives people a right to administrative action, which is fair.
I come back to the issue of tax and say State tax has a long history and in fact, there is a question of whether it is desirable at all because, how the first time the modern tax came into being around 1894, it was introduced in the United Kingdom as a tax on the capital value of land and the idea was to raise money to pay a four million pound Government deficit. So there was a purpose. They sat down and said, ‘how can we raise money, lot of wealthy people are dying, let us tax them’. That was the purpose and now it is a source of income and historically, earlier in 1796, these taxes were introduced to help fund the war against Napoleon. So there was always a purpose for these things, but when we look at the broad strip of history, this tax was really targeted at wealthy people. Mr. President, that was the target.
If you have more land than anyone can imagine, you have more houses than anyone can phantom, let us tax you so that the State might benefit from your fruitful service and your fruitful life on this earth, but it becomes very difficult when it comes to poor people. I have one house, I have one wife and my children or I have two houses, three wives and our children and I have worked all my life for this. Probably, I bought the house when I was in my 50s, when I was just about to die and finally provide a home to my widow and the children. I die and I am suddenly faced with this huge tax on my death and the only asset is my house where my children live and yet there is this huge tax that is there that I must pay to Government. I have these huge fees that I must pay the executors. So the only choice that is left is to sell that only house to raise those fees. The net result is that we undo the progress that certain families have made.
When this county became the modern day Zimbabwe or Rhodesia, there were some families that have historically done well. They have always had homes and they have been always able to send their children to school. They have children who have travelled many career paths, different places. Even now, those families are in a better position than families who up to today have never had a graduate or a businessman, a person who has a house in town, a person who has a house in the rural areas that is a modern roofed house in their family. Should a young person who goes to university or goes to work today build that house, we would all go and celebrate and say for the first time in the Ndlovu household, someone has managed to build a house that has a door. Someone has managed to go to school up to this level.
So in terms of the broad sweep of families, I managed to buy a house, I am 50 and I am the first person to be able to do that, huge taxes on these estates can take me back to 1920 because I am now forced to sell this house in order to pay taxes and the whole family will be set back. So we would want them to look very carefully that as we administer these estates, as we make our amendments, we make it easier for the poorest and we make it easier for those who have worked hard to attain what they have attained because it is very difficult to be wealthy in Zimbabwe, but certainly we have to look at these very carefully. One of the worrying things is that as much as we want to try to make this office autonomous and independent which is welcome, it also puts pressure on the office to raise fees. If these fees were coming from the fiscus, yes, it burdens the fiscus but that is why the fiscus is there, sometimes it must take care of the poor.
However, if we make these people raise fees to put bread on their tables and to keep their institution going, they are going to be hard and selling everyone’s property to raise money for salaries, furniture, and stationery.
I would have a preferred a situation where this particular office continues to get money from the fiscus. Particularly, I saw that the workers are being taken from the Public Service Commission so they will now have to raise their own money to pay workers. Certainly, a day is coming when our houses are under threat if we do not serve this tax whilst we are alive.
In conclusion, I saw somewhere that for example, small errors that we can attend to, but I also saw somewhere where creditors may now be appointed ahead of professional executors of estates. I would move for a situation where creditors should be the last to be appointed into such a position because they are being judges on their case which is what the Minister set out to say we want to avoid. Yes, they may have a right at times, it depends on the situation, but I think this is where again judicial review comes in to determine whether it is an appropriate situation where a creditor can sit and make these decisions, particularly emphasising in very small estates.
As I come to the end of my presentation, we welcome the innovation, but I hope that the Minister will have an open ear as we go through these changes in Committee. I thank you.
HON. SEN. NDEBELE: Thank you, Mr. President. I am sorry because I think the last person who debated, Hon. Senator Phulu has said it all. I cannot spoil the nice soup with salty soup. I thank you.
*HON. SEN. MAVENYENGWA: I want to say that the issue of separating the Master’s office from the Judicial Services Commission is an issue that I support. The issue of the composition of the board from what we noted when we were gathering information; there was the issue of the gender and youth quota. Young people showed interest in participating in such boards that they would want to be part of the boards. If there are no young people or peers on the board, they felt that it would be difficult for their concerns to be considered without representation.
The issue of the Master of High Court was not raised that it be decentralised to provinces. It is quite important because where we come from, these are the areas where people are facing challenges when they lose their relatives through death. It becomes difficult to go to the Master's Court in Harare. So, I propose decentralisation to the district level because people know that we go to the District Administrators’ office. For them to go to the provincial headquarters it is expensive. Some of the people are orphans without any funding, so they might end up delving into selling their inheritance. His Excellency, the President’s mantra is that no place is going to be left unattended and no person is going to be left behind. Therefore, for our rural folk not to be left behind, then the master’s office should be decentralised.
On the issue of the board, I support the point that the board should be funded by the fiscus. Looking at the Commissions that we have, like the Human Rights and the Peace and Security Commission, they receive funding from the fiscus. When I was listening to Hon. Sen. Phulu’s debate, this might culminate in a situation where there will be extra charges which will be too much for people who will end up losing their valuable goods for them to pay the fees.
I also propose that the Government should be able to fund the board and this will assist those who would have lost their relatives in trying to recover their inheritances. I, therefore support the Bill.
HON. SEN. CHIEF NGUNGUMBANE: Thank you Mr. President for the opportunity. I rise to support this Bill. My appeal to you Mr. President and the Hon. Minister is that I think this House would have benefited from the report from the Thematic Committee on Human Rights and the Portfolio Committee on Justice, Legal, and Parliamentary Affairs. When such a Thematic Committee partakes in such outreach, the relevant Committee Chairperson should be allowed to make a report to this House so that all Members can hear what the people would have said and partake from an informed position.
Having said that, Hon. President, we want to welcome the thinking in this amendment to say we are removing the office of the Master from the Judicial Services Commission. I would not want to dwell much, but I want to dwell on the following issues that have not been touched:-
Mr. President, you will agree with me that one of the most difficult times that families go through after the death of a loved one is to go to the office of the Master. You know there are a lot of secrets that emanate that result in fights and conflicts. It is my appeal that now that this office is going to be independent and weaned off from the JSC, the staff complement of this office Mr. President is increased. You find people in certain areas sleeping in queues so that they are served to hear their case.
Therefore, Hon. Minister I appeal to you that since you direct the issues of policy, recruitment is also a policy issue. It is my belief and prayer that you increase the staff complement so as to expedite the conviction of cases.
Then I would want to come to the education of this office. Mr. President, during the course of the Outreach - I will especially make reference to Filabusi. Of all the areas that we visited, Filabusi, Avoca to be precise, was the only rural area where the Committee went to. The views that were expressed by the people there are worth mentioning. They were saying, what happened to our law of property when it comes to customary law? Why are you bringing something that is alien that breeds conflict?
I said to myself Mr. President, it means this Office has not been doing enough prior on this Bill. How many estates has been nicodemously wound-up using other means or without the involvement of other people? It is my appeal Mr. President, now that the Office is being decentralised to provinces, it should also go down to the districts where most people reside and educate people on the importance of this Office.
I remember I had to intervene Mr. President, in a case where a family had shared immovable property based on what was prevailing in the yesteryear. There were conflicts. They came to me and said, chief, we know that your office has no jurisdiction to deal with this but we appeal for you to intervene. I intervened and directed them to the relevant issues. One of the problems that attached to ignorance Mr. President, is the issue of the tax regime. Obviously, when you buy property, it is taxed, - you pay taxes. When that estate is being wound up, Government comes back to tax that property meaning you are taxing it more than once. There is a belief and assumption that those people that have remained behind are wealthy, that is why there is property. I think there is need to debunk that theory.
Last but not least Hon. Minister, Hon. Sen. Phulu captured it ably well. We have heard of reports of corruption emanating from the Office of the Master. Hon. President, it is my prayer that now that the Office of the Master is being weaned off from the Judiciary Service Commission (JSC), the money that they make – they collect a lot of money Hon. Members, that money will be ploughed back to improve the infrastructure. If you go to the Master’s Office, what you see are officers carrying files, old and certain cases torn and in this day and age of technology Mr. President, that is an eye sore.
It is my appeal that the money that the Master will make be ploughed back so that they improve their services. Again the issue of remuneration, Mr. President, issues of corruption in this country can be addressed if we remunerate our staff very well. Dealing with cases that involve properties, money and others that involve possibly millions, you need people of integrity. You need people that are well remunerated that will resist the temptation of a brown envelop.
With those remarks Mr. President, I will sit down having shown my full support although with reservations. I thank you – [HON. MEMBERS: Hear, hear.]-
THE HON. DEPUTY PRESIDENT OF SENATE: Thank you Hon. Senator Chief Ngungumbane. Hon. Senator Mlotshwa you want to debate? I had said he is the last one.
HON. SEN. MLOTSHWA: Thank you Mr. President. I surely was moved by the debate by other Hon. Senators because I am also part of the Human Rights Committee. I moved around the country consulting with the citizens, which is our legislative duty.
Mr. President, as we gather to discuss the Administration of Estate Amendment Act (2024), the Bill that seeks to reform the administration of estates in our country. While the intention behind the Bill may be noble, I fear, it may have unintended consequences that will inappropriately affect the already vulnerable poor. One of the significant concerns is the introduction of the Death Tax, a tax on value of an estate after a person passing. This tax is not only a burden on families who have lost a loved one but also a significant source of revenue for the Government. The issue is that this tax will fall heavily on the poor who often have limited resources to begin with. This will only exacerbate their poverty and hardship.
Furthermore, the amendment on Section 26 of the principal Act will allow creditors to be appointed as Executors of estate ahead of professional Executors. This is a recipe for disaster, creditors have interest in the estate and will prioritise their own interests over those of the deceased. This goes against the principle of nemo judex in causa sua where a judge should not judge in their own cause. The creation of the office as a stand-alone body corporate with powers to sue and be sued will also put pressure on this organisation to raise money to pay for its sustainability using money from the deceased estate.
This is unacceptable and will lead to more assets being sold off, further perpetuating poverty. Hon. Colleagues, Mr. President, we must consider the impact that these changes will have in our society. We must prioritise the rights of the poor and the vulnerable who are struggling to make ends meet. We must ensure that our laws do not exacerbate their poverty but instead provide them with protection and support. – [HON. SENATORS: Hear, hear.] – I urge this House to carefully consider this amendment and to think about the unintended consequences they may have on our society.
We must ensure that our laws are fair and just and do not inappropriately affect certain sections of our society. I thank you Mr. President.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you Mr. President. I want to thank the Hon. Senators for the debate. I am very pleased with the quality of debate and contributions. Starting with Hon. Senator Gotora who chronicled their findings in terms of the Public Hearings that they conducted, alluding to some of the issues that we undertook to correct in the current Act. I want to thank him for that and coming to that, just to comment on the issue raised by Hon. Senator Chief that perhaps it would have been prudent to have the report presented. I think it is something that administratively, we must take into consideration in terms of the flow of Bills. Why should Senators not be afforded the opportunity to find out what the public said out there? I think it is something that we should take note of and correct within the Committee of Standing Rules and Orders so that we amend our Standing Orders appropriately. I take note of that.
I want to thank Hon. Senator Gotora again for the issues that he raised and he said the only complaint is, if they get money from fiscus, why should there be fees, why should people be burdened with fees and it is also an issue that Hon. Senator Phulu also raised and it has been raised by several senators.
Hon. Senator Mlotshwa indicated that we are introducing a death tax. This tax is not being introduced by this Bill. The taxes that are there have been there. It is not even a subject for this Bill. Taxes is an issue that we need to raise with the Minister of Finance when we deal with the budgets to indicate if we really need them. I hear strong arguments and for now, I reserve my own opinion on it but I believe that it is a valid issue but being discussed in a wrong forum. When the Minister comes at budget time when we are doing consultations, let us raise it to say, do we need to tax our estates to say that once I die today, all of a sudden my family has to raise funds to wind up the estate? Is that ideal and is that what we want as a nation?
I heard the history behind it. I did not know about it and I got to learn about it. We learn everyday that it was a tax introduced by the British in their country, or trying to find ways of raising money from those that are very rich but now we have it and we are burdened with it here. So, I believe that it is an issue that we need to park but when we are now deliberating on the Finance Bill and the budget, we can have a look at it and say, do we really need it? There were issues that were raised by Hon. Phulu. I also want to thank him on Modern Inheritance Tax that we need to take in context and I want to thank him again for highlighting the improvements that we want to bring.
The other issue that was raised was the issue of the conduct of officials at the Master’s Office and the corruption issues. I think these are issues that we need to deal with. I have heard that we need to remunerate them so that they do not become corrupt. I think it is administrative and operational when we bring efficiency at the Office of the Master to ensure that even ZACC get in also and have their ethics pledges done within that office and ensuring we inculcate values that remove that urge to be involved in corruption within the office. I agree that it is an issue that we need to deal with. I do not believe that we can legislatively deal with it to say it is an issue that is endemic in our country.
Furthermore, there was the issue of the conduct of the Master’s officials that they may decide with the executor to sell the property. I think we have tried to deal with that issue in this particular Bill. If you notice, the current position was even worse. The Master would just appoint but we are saying before the Master does that, then he has to go to court. Currently, it was not like that. Now, we are saying that if the Master desires to appoint an executor, in fact, the first port of call is families must agree, then they appoint an executor.
However, where there is a dispute, we are now saying the Master gives notice to those that are in dispute. They would say, I am going to court so that they can make their representation there to say that what the Master is trying to do, we do not agree. That amendment was born out of the fact that we realise that everything that you have been mentioning, to say candles time, the people would sell property and would appoint an executor who then looks at the value of the estate. In fact, it is very easy. The Master can see the value of the estate, and then notice that the people are fighting. He then gets a friend to say, can you now become an executor of this and there are fees and they can share.
So, now we are saying, let that process be subjected to the judicial process before the decision of the Master is confirmed. We will look at it when we go to the actual clauses. That is the very reason why we are doing that. I think the issue of taxes, we have dealt with. Hon.
Sen. Ndebele, I want to thank you. You did not want to spoil the party and I agree with you. Hon. Senator Phulu had actually laid out the issues appropriately. Hon. Senator Mavenyengwa is supporting the Bill and believes that the decentralisation to districts would be ideal. We are making provision for that but we want decentralisation. Once we have provincial offices, these days we only have Harare and Bulawayo but now within the Act, we want decentralisation so that it can reach the districts like what we are alluding to. Thus the thrust we want and you spoke about the board, that it must be given money from the fiscus. The provision is there but like I said, the taxes that are there is not the subject of discussion here but we can discuss it with the Minister of Finance. I agree that perhaps it is a burden on those that are bereaved. They now need to look for money, it is a very strong point.
Hon. Senator Chief supports the Bill. I agree with him and unfortunately, one thing that I believe with most parliamentarians is to look at our inheritance laws. What we are doing is, this Bill is on Administration of Estates according to the laws that are there. So, we are not really looking at amending the wholesome of the inheritance laws, but we are looking at how that estate is being administered. I agree that perhaps we need to look at ourselves in the mirror and say, do we really need the muzungu law as our inheritance law like what we are saying? Can we not blend and have our own cultural practices which some of them were not very bad? Why should we have a regime of Administration of Estates of inheritance that is a cocktail of disaster, but it is not the subject matter. I tend to agree that it is something that we need to have a look at.
I have tasked a team to say, can you advise on how we can proceed with our inheritance laws that are a cause of confusion. I agree again that there is need for education once the Bill is passed, the Master’s Office must go out here and educate people on some of the inheritance laws. Just to digress, I did an exercise, you know the small-scale purchase areas kumatenganyika, those were the first rural people after colonisation to get title deeds, and we did not have.
So, the first ones who settled on those farms after buying them, in their mindset had inheritance structures that the chief is speaking to, to say that if I die it goes like this. Some followed that but it got to the extent whereby if one son gets it, it is now his. If he dies, the inheritance can go to the wife and if the wife remarries, the new husband can take that place and the old man from Chivi or Chiweshe bought that farm saying this is now my home. Now a foreigner is now there and the graves are there. I said I am digressing Mr. President to just allow Hon. Senators to think along the lines that the Hon. Chief said, do we need this; does it represent who we are? It is not subject of this Act; it is just a digression. I want to thank the Hon. Chief for laying out the issues. You know when we are debating Second Reading speech, you can debate anything and that is well received.
He also spoke about corruption, I think within the Office of the Master, it is something that I agree we need to tackle. Lastly, Hon. Sen. Mlotshwa is very passionate on why should we introduce a death tax. The issue of taxes, I think I have said let us defer it to when we deal with budget issues to say, do we really need it? Having said that Hon. President of Senate, I move that the Bill be now read a second time. I thank you.
Motion put and agreed to.
Bill read a second time.
Committee Stage: With leave, forthwith.
COMMITTEE STAGE
ADMINISTRATION OF ESTATES AMENDMENT BILL [H. B. 3A, 2024]
House in Committee.
Clauses 1 to 2 put and agreed to.
On Clause 3:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Hon. President, it is just a correction to note. I think when they captured this, they did not number it well. It has 1,2,3, and then the last one is written 2, it is supposed to be 4. On page 2, Office of the Master, Clause 3, Office of the Master, Master and other officers.
THE TEMPORARY CHAIRPERSON (HON. SEN. KAMBIZI): That is 1.
HON. Z. ZIYAMBI: Then it has 3, subclause 1, the Office of the Master of High Court which existed, then it has 2, the Office of the Master shall be a board corporate, 3, there shall be a Master of the High Court, a deputy and then there is two again. You got it; it is a typing error. Let us make sure that the typing error is corrected.
THE TEMPORARY CHAIRPERSON: Make sure that that correction has been taken care of.
HON. SEN. PHULU: On Clause 4, it says the Auditor General is only allowed to audit those funds that are voted for in Parliament, charged to the Consolidated Revenue Fund by this Act or any other law, but what about those amounts that they raise through their various activities?
THE TEMPORARY CHAIRPERSON: What page?
HON. SEN. PHULU: Page 4 (b) (iii). It says the Auditor General will exercise his function on those amounts that are voted into by Parliament and (b) those charged to the Consolidated Revenue Fund by this Act or any other law. What about the amounts, the fees that they raise? Are those being excluded from the consideration of the Auditor General? Is that the intention?
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Thank you Hon. Chair for your indulgence. On page 4, that is 4 (b) (3) where it says, subject to Section 4 (d), policy direction as to exercise of the board’s functions, in the exercise of its functions, the board shall not be subject to the control or direction of any person or authority other than for audit by the Auditor General, of those funds of the office referred to in Section 4 (f). So, 4 (f) is very comprehensive, it covers all funds that the Office of the Master receives. Then we expunge (a) and (b) and refer to Section 4 (f).
Therefore, I am proposing the amendment that on 4 (b) (iii), we say, after those funds of the Office referred to in section 4 (f). We remove (a) and (b) but 4 will remain.
Still, on this very long clause, on page 7, it reads “a new section substituted for Section 26 of Chapter 6.01, where it says Section 26 of the principal Act is repealed and substituted by 26, competition for the office of the executor. I am proposing that we remove ‘a creditor or creditors’ in line with the representations made by Hon. Senator Phulu. I think I agree with him. So, I propose that amendment that we expunge that. It is on page 7, the first paragraph, it is one sentence then second paragraph, it is 2 then 4 (j), investment of funds not immediately required by the office, then we have this new section on line 13 from the top on page 7…
The Hon. Minister was asked to approached the Chair.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Hon. Chair and Hon. Senators, we just wanted to clear on the numbering so that we capture it correctly. We are still on Clause 3, which is Part II, Office of the Master where I proposed an amendment on page 4, to make an addition after Auditor General of those funds of the Office referred to in Section 4 (f). I think that is the only amendment on that clause. So, I put those amendments in my name to be consistent with what was made reference to by Hon. Senator Phulu, that all the funds of the Master must be audited by the Auditor General. Basically, that is what we are inserting. I put the amendment Hon. Chair.
Amendment to Clause 3 put and agreed to.
Clause 3, as amended, put and agreed to.
On Clause 4:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Hon. Chair, consistent with the contributions during the Second Reading speech, I move that on Clause 4, Competition for the Office of the Executor, that is subsection 1, I propose that we remove on line 2 where it says, ‘or failing him or them, a creditor or creditors or failing him or them, a legatee or legatees’ to delete that in line with the contributions that why creditors should be preferred as executors when they are interested parties, I have removed that. I propose those amendments in my name. I thank you.
Amendments to Clause 4 put and agreed to.
Clause 4, as amendment, put and agreed to.
Clauses 5 to 11 put and agreed to.
On Clause 12:
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. Z. ZIYAMBI): Just a correction on numbering. Hon. Chair, maybe once we are through, there is need to check on the numbering. There are so many errors in terms of numbering. I think those are typing errors when they transcribed and brought the Bill here. Like on page 13, the last section jumps from 5 to 7. It should be 6. With your leave, maybe the Clerk can clean it up once it is done so that we do not make reference to all those. I thank you.
Amendment to Clause 12 put and agreed to.
Clause 12 as amended, put and agreed to.
Clauses 13 and 14 put and agreed to.
House resumed.
Bill reported with amendments.
Bill referred to the Parliamentary Legal Committee.
HON. Z. ZIYAMBI: Thank you Mr. President Sir. I want to thank the Hon. Senators for their patience and for the great work they did today and you Mr. President Sir.
On the motion of THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON. ZIYAMBI), the Senate adjourned at Fourteen Minutes to Five o’clock p.m.