MATHONSI J: This
is a dispute involving the estate of the late Charles Mbunji Ndlovu, who died
intestate on the 26th May 2002.
The matter was commenced by court application which was opposed only by
the 1st Respondent. By consent
order granted by CHEDA J on 14th February 2007, the matter was referred to
trial with the affidavits filed of record to stand as pleadings. This was presumably because the parties
realised the disputes of fact which could not be resolved on the papers.
Charles Mbunji Ndlovu (''the deceased '') met
the applicant ('' the plaintiff'') in 1980.
At some point they commenced living together and had 2 children namely
Lebani Ndlovu, born in August 1984 and Wisdom Ndlovu, born in September
1986. The 2 did not solemnise their
relationship in accordance with the marriage laws of this country.
On the 10th April
1987 the deceased married the 1st Respondent (''the 1st
Defendant'') in terms of the Marriage Act, Chapter 5:11. It would appear that this marriage is still
in subsistence although the plaintiff alleges that divorce proceedings had commenced
at the time of the deceased's death.
There are no children born of the marriage between the deceased and the1st
Defendant. At the time of the deceased's
death on 26 May 2002, he was living with the plaintiff at No. 22 David Carnegie
Road, Northend Bulawayo as the 1st Defendant had left him much
earlier and was now residing elsewhere.
The dispute arose after the
plaintiff registered the deceased's estate in terms of customary law at the
Magistrates Court (DRB 814/02) where the deceased's children from an earlier
relationship Prince Ndlovu, born on 16 September 1968 and Golden Ndlovu, born
on 4 April 1970 were some of the people who deposed to affidavits confirming
the plaintiff as the widow and heiress to the deceased's estate. The 1st Defendant registered the
estate with the 3rd Defendant (DRB 1168/02) also claiming to be the
widow and heiress to the deceased's estate.
In Case No. HC 890/03, the
plaintiff unsuccessfully instituted summons action seeking an order
nullifying the marriage between the
deceased and the 1st Defendant and barring the 1st
Defendant from laying a claim to the estate.
By order of 21 March 2005 NDOU J upheld an exception by 1st
Defendant that no lawful grounds had been disclosed in that action for the
relief sought which was dismissed with costs.
The plaintiff then instituted this
action seeking a declarator that she is a spouse of the deceased in terms of
the Administration of Estates Act, Chapter 6:01; that she is entitled to
enherit house No. 22 David Carnegie Road Northend Bulawayo together with
household effects therein and that the said house be transferred to her name.
The 1st Defendant
filed opposition alleging that the plaintiff was not customarily married to the
deceased and is therefore not entitled to inherit from the estate and that she
as the lawful wife of the deceased should instead inherit from the estate.
It is common cause that at the
time of the deceased's death, the 1st Defendant and the deceased had
long ceased to cohabit as husband and wife and were not in communication
whatsoever after the 1st Defendant deserted and pursued a separate
life. It is also common cause that at
the time of death, the deceased and the plaintiff were living together as
husband and wife at No. 22 David Carnege Road, North End Bulawayo which was
their matrimonial home.
It is pertinent to point out
that at the trial the 1st Defendant defaulted. The matter was stood down for a day to enable
Mr Moyo, representing the 1st
Defendant to locate her and bring her to court.
On the following day, the 19th January 2011, Mr Moyo again appeared without the 1st
Defendant and told the court that she had elected and not to come to
court. Therefore, I have not had the
benefit of the viva voce evidence of
the 1st Defendant, who elected not to appear and not to lead any
such evidence.
The evidence of the plaintiff is
to the effect that she met the deceased in 1980 and in 1982, the deceased
approached her parents in Filabusi requesting a customary marriage through his
go between, one Sikhova Nkomo, who was the deceased's uncle. When the plaintiff's parents agreed to meet
the deceased and his go between, a meeting was arranged at their rural home in
Filabusi which was attended inter alia
by the deceased and Sikhova Nkomo from the Ndlovu family and the plaintiff (who
was in an adjoining room during deliberations), the plaintiff's parents and her
brothers Josiah and Joel Nyoni.
The deceased was asked to pay
all the customary dues in the form of the introductory fee (sivulamlomo) of $20-00 and the
acceptance fee (kangaziwe) in the sum
of $200-00. The deceased requested to be
charged the bride price (lobola) and
was duly charged in the form of 4 head of cattle (converted to$400-00) and the
usual overcoat; blankets and tin. At a
later date the deceased and his go-between returned to pay the lobola and
deliver the other items that had been demanded thereby completing the process
of a customary marriage.
The plaintiff testified further
that the deceased and herself commenced staying together as husband and wife
and had their 2 children afore said.
Initially, as the deceased was employed by NRZ he was entitled to a
company house, and they stayed at a house belonging to NRZ namely No. 4
Lovemore Crescent, Northend Bulawayo. It
was not until 1985, that they purchased their own matrimonial home, namely No.
22 Dvid Carnegie Road North End, Bulawayo.
They then moved to that house which they were occupying when the
deceased passed away.
She had been admitted at Mpilo
Hospital in 1987 as she had delivered their son Wisdom prematurely and this
required that she stays in hospital for some time. When she was eventually discharged, she
returned home unexpectedly only to find that the deceased had been bringing the
1st Defendant to spend nights at the matrimonial home.
As a result, they quarrelled and
because she was nursing a small premature baby, she decided to move out of the
matrimonial home and stay with her sister in Tshabalala while she concentrated
on bringing up her child. During the
time that she stayed with her sister, the deceased would come to beg her to
return to the matrimonial home but she would refuse. Sometime in 1987, she heard that the deceased
had wedded the 1st Defendant but when she confronted him, he
initially denied it but later admitted.
He however told her that they had quarrelled on the wedding day and the
1st Defendant soon left and returned to her home.
According to the plaintiff she
remained at her sister's house until 1993 when the deceased eventually
apologised for his aberration. He and
his go-between travelled to the plaintiff's rural home to formally apologise
customarily. He was penalised for that
in the customary way after which he was allowed to take his family back to his
home. She maintained that even as they
remained apart they continued to share conjugals and therefore remained husband
and wife.
When she formally returned to
the deceased in 1993, he was then working in Gweru and she and the children joined him there. The matrimonial house was then being rented
out. It was not until 1996 that the deceased transferred to Bulawayo and the
family moved back to the matrimonial home where they remained until the
deceased passed away. At his funeral,
she was the only recognised wife and was made to cover herself with a blanket
in the traditional way, which signified that she was the widow mourning her
husband. The deceased's family, again in
conformity with tradition, requested her to put on a black mourning dress for a
full year. All this was to recognise her
as the widow of the deceased and throughout all this the 1st
Defendant was nowhere to be seen.
The evidence of the plaintiff was
corroborated by 3 witnesses Josiah Nyoni the plaintiff's brother, confirmed
that he was present when the customary marriage was contracted and when the
deceased came to apologise for his misdeeds in 1993 and was allowed to take his
family back to his home. He added that
as far as his family was concerned the plaintiff has always been customarily
married to the deceased until the latter died.
Joseph Mlobisi is a family
friend and was a neighbour of the deceased and the plaintiff when they stayed
at the NRZ house. Even after they moved
to their own home their relationship continued as he would visit them. The deceased confided in him and he denied
that him and the 1st Defendant stayed together for long as husband
and wife.
Gladys Tshuma is a cousin of the
deceased who was requested by the deceased to come and stay with him in order
to assist with house hold chores after the plaintiff had moved out. She testified that the deceased and the 1st
Defendant quarrelled on the day of the wedding and that the 1st
Defendant soon returned to her own home.
The 2 did not cohabit as husband and wife for any meaningful period.
The evidence led on behalf of
the plaintiff was given very well and in a simple and straight forward
manner. All the witnesses were credible
and I have no reason to disbelieve them especially as the 1st
Defendant chose not to testify herself.
That evidence is to the effect that the deceased and the plaintiff were
customarily married in 1982 and that marriage remained in subsistence until the
deceased died in May 2002. Although
they once had their problems and lived apart, the marriage was never
dissolved. When the deceased died he was
living with the plaintiff at the matrimonial home – No. 22 David Carnegie Road
Northend Bulawayo – a home which they acquired together.
While, the deceased contracted a
civil marriage with the 1st Defendant, they did not stay together
for long and at the time of the deceased's death they had long gone their
separate ways. There was no
relationship whatsoever between them, except on paper. There may be other reasons why they did not
have children but one cannot ignore the fact that they did not have much opportunity
to do so.
The problem presented by this
matter is governed by the provisions of the Administration of Estates Act,
Chapter 6:01. Section 68 of that Act
provides in subsections (3) and (4) as follows:
''(3) A marriage contracted according to customary law shall be
regarded as a valid marriage for the purposes of this Part not withstanding
that it has not been solemnised in terms of the Customary Marriages Act,
[Chapter5:07] and any reference in this Part to a spouse shall be construed
accordingly.
Provided
that such a marriage shall not be regarded as valid for the purposes of this
Part
if when it was contracted either of the parties
was married to someone else in accordance with the Marriage Act [Chapter 5:11]
or the law of a foreign country under which persons are not permitted to have
more than one spouse.
(4) A
marriage contracted according to the Marriage Act [Chapter 5:11] or the law of
a foreign country under which persons are not permitted to have more than one
spouse shall be regarded as a valid marriage for purposes of this Part even if,
when it was contracted, either of the parties was married to someone else in
accordance with customary law, whether or not that customary law marriage was
solemnised in terms of the Customary Marriages Act [Chapter 5:07].
Provided that, for the purposes of this Part,
the first marriage shall be regarded as a customary law marriage.''
By clear
and unambiguous language, the legislature, in the exercise of its legislative
powers, has seen it fit to not only recognise a customary marriage as valid for
purposes of inheritance, it has also placed such marriage at par with one solemnised in terms of the Marriage
Act. By parity of reasoning, a spouse
under a customary marriage stands at the same pedestal as a spouse under the
Marriage Act.
In my view the legislature has
unquestionably raised the status of a customary marriage to the same level as a
civil marriage. There cannot be any
clearer language by which to recognise such a marriage. In my view this was borne by a realisation
that no matter how you try to ''civilise'' an African man, he shall forever
remain entangled in the web of customary law and invariably shall have a
customary wife somewhere in the back ground, even as he upgrades himself by
marrying someone else by civil rites. It
is those customary wives which the legislature sought to protect.
Regarding the respective rights
of such ''spouses'' Section 68 F of the Administration of Estates Act is
equally clear. It provides that where
there is a dispute between an executor and a beneficiary the master shall be
guided by the provisions of subsection (2) which reads:
'' (2)
The master shall be guided by the following principles, to the extent that they
are
applicable, when determining any issue between
an executor and a beneficiary in terms of paragraph (c) of subsections (3) of
section 68E –
(a)
- -
(b)
- -
(c)
Where the deceased person was a man and is survived by 2 or more wives, whether
or not there are any children, the wives should receive the following property,
in addition to anything they are entitled to under paragraph (b) –
(i) Where
they lived in separate houses, each wife should get the ownership of or, if
that is impracticable, a usufract over, the house she lived in at the time of
the deceased person's death, together with all the household goods in that
house.
(ii) Where the wives live together in one house at the time of
the deceased person's death, they should get joint ownership of or, if that is
impracticable, a joint usufract over, the house and the household goods in that
house.''
In my view
these provisions are so clear as to admit of no ambiguity at all. Where the deceased is survived by 2 wives as
in the present case, and those wives live in separate houses each wife is
entitled to receive the house that she occupied at the time of the man's death
together with household effects in that house.
Where the 2 wives shared the same
house they are entitled to joint ownership.
This is so regardless of the status of the marriage as long as, in the
case of a customary marriage, it was entered into before the Civil Marriage.
It is only if the wives shared
the same house that they can share the house.
This is regardless of the existence of children.
The mischief that the
legislature intended to address is not difficult to identify. For some time women married under customary
law had faced ignominy of being chased out of their homes they toiled for with,
and at times without, the husband who would have married a younger wife who
invariably insists on a Civil Marriage.
The law as it existed before the introduction of Act No. 16 of 1998
disinherited that customary law wife in favour of the new wife.
In those circumstances a woman
married under the Marriage Act would then take over the house in which the
customary law wife resided and which she toiled for without any contribution
from the new wife. The above provisions
ensure that the customary law wife benefits from her sweat while the new wife
does the same. The Act is silent as to
what happens when the new wife has no house belonging to the deceased common
husband.
However, in my view, considering
the mischief sought to be addressed, it was never the intension of the law
giver that where the 2 wives lived in different houses, the one without would
be entitled to cross over and share the single house occupied by the
other. That would defeat the whole
purpose of the enactment.
I come to the conclusion that
the plaintiff was a spouse for purposes of the Administration of Estates Act
and is entitled to receive the house and the household goods in it, which she
occupied to the exclusion of the 1st Defendant. The time has come to declare in no uncertain
terms that parties cannot invest in a paper marriage only to surface after the
death of the other person they would have long abandoned to commance a new
life. Its an unacceptable and extremely indecent
habit which should be discouraged. If
the marriage has failed it should be terminated to release the parties to start
afresh.
Accordingly I order as follows:
that
1. The
plaintiff, Jennifer Nyoni be and is hereby declared the spouse of the late
Charles Mbunji Ndlovu for purposes of
the Administration of Estates Act, Chapter 6:01.
2.
The plaintiff, Jennifer
Nyoni be and is hereby declared sole beneficiary of immovable property and improvements
thereon known as 22 David Carnegie Road, Northend, Bulawayo together with the
household effects therein.
3. The
2nd and 3rd Respondents be and are hereby directed to do
everything necessary to effect transfer of the said house and the house hold
effects therein to the plaintiff.
4. The costs of suit shall be borne by
the estate late Charles Mbunji Ndlovu.
Webb, Low and Barry, Applicant's Legal Practitioners
Messrs Majoko and Majoko, 1st
Respondent's Legal Practitioners
