GUVAVA J: The
applicant in this matter was married in terms of customary law to one Alice
Mukowamombe in April 1986. In 2001 the applicant moved out of the matrimonial
home and commenced to live with another woman as his wife. Alice Mukowamombe (hereinafter
referred to as the deceased) died intestate on 11 June 2007. She was survived
by three children two of whom she had with the applicant. Following her death
the first respondent, who is her brother, registered her estate and was duly
appointed as executor. The deceased estate comprised of an immovable property
in Kuwadzana which she had purchased from the Ministry of Public Construction
and National Housing by virtue of her employment in the Zimbabwe Republic
Police. Following his appointment as executor of the deceased's estate the first
respondent proceeded to administer the estate to the exclusion of the
applicant. He prepared a distribution plan wherein he sought to bequeath the
property to himself and the deceased's three children.
The
applicant thus filed this application seeking an order that he be declared the
deceased's surviving spouse and that the appointment of first respondent as the
executor together with the distribution plan he had made be set aside.
The application was opposed by the first
respondent primarily on the basis that at the time that the deceased died the
applicant was no longer her husband and that he was therefore not entitled to
benefit from the estate.
At the hearing of the court
application it was apparent to me that there was a clear dispute of fact
regarding whether or not the applicant was still married to the deceased at the
time of her death. With the consent of both parties I proceeded in terms of r
239 (b) of the High Court Rules, 1978 as amended, which allows a court when
hearing an application to hear oral evidence.
The
applicant testified that he married the deceased in terms of customary law in
April, 1986 and they had two sons. In December, 1994 they purchased an
immovable property, namely stand 10382A Kuwadzana from the Ministry of Public
Construction and National Housing in their joint names. He stated that he never
dissolved his marriage with the deceased although in 2003 he married a second
wife as he is perfectly entitled to do under customary law. He continued to
live with both women as husband and wife until the deceased's death in 2007. He
stated that he was present at the deceased's funeral and provided all the
traditional things like the "fuko" and two goats which were consumed
at the funeral. In cross examination he stated that he left the Kuwadzana home
in 2003 but he continued to look after his children by paying for their school fees and providing
groceries. He stated that he would go to the Kuwadzana house about four times a
month to be with the deceased and the children He stated that he continued to
have sexual relations with the deceased as husband and wife during this period.
He reiterated that he never at any stage
gave the deceased a divorce token (gupuro) in terms of customary law.
The applicant gave his evidence
well. He was clear and concise in his testimony and was prepared to answer all
questions put to him. In my view he was not shaken in cross examination and he
was a credible witness.
The next witness was Sergeant Jaison
Mapfumbate. He testified that he knew the deceased as a workmate as they worked
together at the Harare Magistrates Court from 1995 to 2000. He attended the deceased's funeral since he is
a Chaplin for the Zimbabwe Republic Police. He confirmed that the applicant was
present at the funeral. In cross examination he told the court that apart from
the applicant having told him that he was asked to buy a beast at the funeral
as a son in law he was not present when the discussion took place.
The witness was an honest witness
who merely confirmed the presence of the applicant at the deceased funeral. He
did not try to exaggerate his role at the funeral nor testify about what he did
not know even in circumstances where suggestive questions were put to him. I believed
the witnesses testimony. With this evidence the applicant closed his case.
The first respondent testified as follows.
The deceased was his sister and was the first born in their family. At the time
of her death she was living at stand number 10328A in Kuwadzana with her three
children. When she married the applicant she had a child from a previous
relationship. He stated that after the applicant moved out of the matrimonial
home in 2001 he would visit the deceased and on all the occasions that he was there he never saw the applicant.
The applicant did not visit the deceased after she fell ill and was in
hospital. He also did not assist at her funeral. He stated that although he was
present at the funeral he was not asked to perform any functions of a son in
law nor did he render any financial assistance because he was no longer
regarded by the family as married to the deceased. In cross examination the
witness failed to explain the discrepancy between his testimony and the
evidence in his opposing affidavit. In the opposing affidavit the witness had
stated that the applicant did not attend the deceased's funeral however in
evidence and probably after having heard the clear evidence by Jaison
Mapfumbate he changed his testimony and conceded that he had been present. He
however denied that applicant had been asked to perform any rituals as a son in
law. He however confirmed that no "gupuro" had been paid by the
applicant to his sister as a divorce token but he went on to explain that it
was not necessary as he had never paid lobola but only a small token called "tsvakirai
kuno". When questioned by the court he stated that the deceased had called
him and their aunt and advised that she was no longer interested in the
relationship but she had not given the applicant "gupuro". He also
confirmed that once a person has paid" tsvakirai kuno" he is
considered at customary law as a husband.
This witness was
in my view, not a truthful witness. He
lied about the fact that the applicant did not attend the deceased's funeral
and only changed his story when he realized that there was overwhelming
evidence from an independent witness. He was evasive about the applicant's
marital status with his sister. It was only after protracted questioning that
he admitted that he was her customary law husband. It was apparent to the court
that his testimony was clouded by what he perceived as ill treatment of his
sister by the applicant.
The next witness was Hardlife
Tafadzwa Mukowamombe. He was the deceased's eldest son. He stated that the
applicant is his step father. He told the court that at the time of his mother's
death the applicant was not staying with them as he had moved out of the home
in 2001. He stated that from the time that he moved out the applicant only came
returned two months after his mother's death and tried to move in with them. He
confirmed that the applicant was present at the deceased's funeral though he
did not see him perform any rituals. In cross examination he stated that he did
not view applicant as a caring father and thus did not want him to inherit his mother's
house. He however stated that he had no ill feelings towards the applicant and
explained that during the time he lived with them he would give him food when
the deceased denied him for not providing for the family.
In my view this witness's evidence
was both credible and believable. He was honest
about not wishing the applicant to inherit his mother's house but was
also fair in that he had no ill feelings towards the applicant. He would
smuggle food to him when the tension at their home was at its worst. I have no hesitation in accepting his evidence.
Emilia Mukowamombe was the next
witness. She testified that the deceased was her elder sister. She stated that
the applicant did not visit the deceased when she was ill or when she was admitted
in hospital. She further stated that although he attended the funeral she did
not know whether or not he conducted any rituals. In cross examination she
stated that as far as she was aware the applicant and the deceased had
dissolved their union. At the time of deceased's death they were no longer on
speaking terms. She stated that to her knowledge, when a customary union is
over, one party just leaves. She had heard of the word "gupuro" a
long time ago when she was still a child and did not think it had any
application to present day relations.
Gladys Guri told the court that the
deceased was her young sister. The applicant had children with her. She stated
that the applicant and the deceased were no longer staying together at the time
of her death. She was present at the deceased's funeral and attended the family
meeting. She stated that the applicant was not present at that meeting and was
not asked to perform any rituals as a son in law. In cross examination she
stated that she is married in terms of customary law. She also stated that if
she and her husband want to dissolve the marriage the one party just leaves.
She stated that she is aware of the practice of paying "gupuro" but
the deceased did not pay any and neither did the applicant.
Two traditional chiefs testified in
this case. They were Joseph Magayo who is known as chief Hata and Mark Nyaada
who is known as chief Makoni. The two chiefs were from the districts where the
applicant and the first respondent live. They were called to clarify the
position relating to dissolution of customary marriages. Although they were
from different parts of the country they were both agreed that a marriage at
customary law can only be dissolved by the tendering of "gupuro".
They were both adamant that "gupuro" is not paid in private but is
paid through a go between (munyai) or "tete". If no "gupuro"
has been paid the parties are merely separated and not divorced. They were also
of the opinion that in practice the period of separation was not of any
significance. Chief Makoni however went further and stated that the position
can be altered if the wife marries someone else as under customary law a woman
cannot have two husbands. The second marriage thus has the effect of dissolving
the first one even though no "gupuro" may have been paid.
The evidence by both the applicant
and the respondent and their witnesses showed that that the applicant and the
deceased separated between 2001 and 2003. At the time of their separation their
relationship had deteriorated to such an extent that the applicant was sharing
a bed with one of the children whilst the deceased slept on the floor. There
were frequent quarrels and the deceased got to a point when she would deny the
applicant food as she alleged that he was not supporting the family. It was
also apparent that when the applicant eventually moved out there was no family
meeting to resolve the dispute and neither party gave the other
"gupuro". Whilst the applicant sought to show that they were still
communicating and he would go and visit her from time to time it was clear from
the testimonies of Hardlife Mukowamombe, Gladys Guri and Emma Mukowamombe when
I believed, that this was not the position. The applicant and the deceased had
clearly separated at the time of her death as the applicant did not even visit
her when she was sick. In determining the matter before me however the issue of
whether or not they were still communicating was of little relevance as both
chiefs stated that in cases where "gupuro" had not been paid the
parties remain married. I had no difficulty in accepting their evidence in this
respect as it is totally in line with the legal position as set out in the case
of Pasipanodya v Muchoriwa 1997 (2)
ZLR 182 (S). MUCHECHETERE JA when dealing with a similar part stated as follows
at page 184 of his judgment:
"This is
because in my view the marriage was not dissolved - a marriage under an
unregistered customary law can be dissolved under customary law either by
giving the wife "gupuro" or before a customary law court. The parties
merely separated. On separation, there was no proper distribution of the F
matrimonial property. "
The respondents submitted in
argument that "gupuro" is no longer a requirement for dissolving a
customary law union because custom is dynamic and has become obsolete. The
respondent submitted that this position
is confined by the fact that every shona person goes through the traditional
marriage ceremony when they marry even if they go on to register their marriages
under general law but very few of them tender "gupuro" when they
divorce. In my view however, this argument could not be sustained. Firstly, the
two traditional leaders who gave evidence were quite categorical in this regard
as they testified as to the practice which is done in their communities at
present. While they came from different parts
of the country they were both of the same view that where parties have married
in terms of customary law then their union can only be dissolved in terms of
customary law. Secondly, the respondents argument that “gupuro” was no longer
relevant as modern society was in my view self defeating because
Africans who then subsequently register their marriages in terms of general law
do not pay “gupuro” to dissolve their marriages because they have decided that
they do not wish customary law to apply to them and thus there is no
requirement for them to tender “gupuro” when they dissolve their marriage. They
have made an election for the general law to apply to them and they obviously
approach the court for an order dissolving their marriage. The position is
entirely different where parties have remained married in terms of customary
law. In my view they have made a clear election that they wish that customary
law applies to them. Parties married under general law prove their divorce by
producing a divorce order. How would persons married under customary law prove
that they have dissolved their marriage if “gupuro” was not paid and accepted?
In any event the approach suggested by the first respondent is completely alien
to customary law which demands that on marriage relatives from both sides
gather to witness the payment of lobola and on divorce too the divorce token is
paid in the presence of witnesses. Further the lobola is paid to the family of
the bride and it is unimaginable that the dissolution of the marriage could be
without the involvement of the family. Whilst it was accepted in this case that
the applicant had not paid lobola but only "tsvakirai kuno" evidence
was led to the effect that once this has been paid the applicant is recognized
as a customary law husband.
The
submissions by the respondents counsel that the court should take into account
that under general law a marriage is presumed to have broken down where the
parties have lived apart for a period of 12 months did not take the matter any
further because under general law where parties have not divorced and were
living apart the surviving spouse is recognized as a surviving spouse for the
purpose of inheritance.
It seems to me therefore that the
applicant has established that he was the customary law husband of the deceased
at the time of her death and is entitled to such a declaration.
The next issue to be determined is
whether the first respondent should be removed as executor of the estate. It is
trite that a beneficiary to an estate may apply at common law for the removal
of an executor. It is not in dispute that being the surviving spouse of the
deceased the applicant is a beneficiary of the estate. The basis upon which he
can seek the removal of first respondent is if he can show that his continuance
in office will not auger well for the future welfare of the estate and the
beneficiaries. (see Katirawu v Katirawu HH 58/07). The decision by first respondent,
as executor, to have the immovable property left by the deceased shared by him
in conjunction with the minor children was clearly wrong. He was not a
beneficiary to the estate in the light of the fact that deceased was survived
by her tree children. It seems to me that the best interest of this
estate would be best served by the appointment of an independent executor who
would be able to look objectively at the interests of all the beneficiaries.
The deceased was survived by three children two of whom she had with the
applicant. The interests of these three children must be catered for. She also
left a surviving spouse who is entitled to a share in the estate although he is
now staying with another wife. The new executor must balance all these
interests and come up with a distribution plan which takes cognizance of the
fact that at the time of her death the applicant was now living elsewhere. In
my view the incumbent executor would find it very difficult to weigh these
conflicting interests in a balanced way especially if one takes into account
the stance he had already taken in relation to the distribution of the
property. It is for these reasons that I would accede to the applicants claim
that the first respondent be removed as executor.
The distribution plan which was made
by the incumbent executor was also faulty as it did not take into account the
provisions of s 68 of the Administration of Estates Act [Cap 6:01]. There is need therefore for the new executor to come up
with a new distribution plan for the estate. The executor would have to
investigate in my view whether the applicant is indeed a co-owner of the house
in question. This issue was not properly canvassed in these proceedings as the
thrust of the dispute was whether or not the applicant was a surviving spouse.
In making the distribution plan he should be guided by the provisions of s 68 D
and particularly s 68F (e) which deals with the situation such as the present
where the applicant had more than one wife at the time of deceased's death.
The applicant did not seek costs in
this matter and I will thus not make an order for costs.
I accordingly make the following
order:
1. The applicant be and is
hereby declared the surviving spouse of the Late Alice Mukowamombe.
2. The first respondent is
hereby removed as executor of the estate Late Alice Mukowamombe.
3.
The distribution plan made 24
September 2007 is hereby set aside.
4. The Master shall as soon
as practically possible call for a meeting for the appointment of a neutral
executor.
5.
Each party will bear their own
costs.
Muza & Nyapadi, applicant's legal practitioners
Legal Aid Directorate, 1st respondent's legal practitioners
