The late Elina Nyoni died on 14
July 1986 at Bulawayo. She was a widow whose husband died in 1967 and their
marriage had been blessed with five (5) children, namely, Abias Zvavamwe born
on 21 November 1957, Anna Mpofu born on 7 April 1959, Never Mpofu born on 10
May 1961, Albert Mpofu born on 5 November 1963 and Alice Mpofu, born on 3 June
1967.
All the male children of the late Elina Nyoni are now
deceased but are survived by their own children who are the grandchildren of
the late Elina Nyoni.
At the time of the death of her
husband, the late Elina Nyoni had inherited Stand No.63816 Tshabalala Township,
Bulawayo which is also known as House No.7547/8, Tshabalala, Bulawayo. Clearly, that inheritance was not in
accordance with Customary Law as an African woman was then regarded as a
perpetual minor incapable of owning or inheriting her husband's immovable
property. Therefore, the late Elina
Nyoni inherited the house from her husband by virtue of General Law which means
that the family elected to be governed by General Law in so far as inheritance
was concerned.
When Elina Nyoni died, her estate
was not registered and nothing was done to wind up her estate until the year
2001. The first born son, Abias Zvavamwe, remained in occupation of House
No.7547/8, Tshabalala, Bulawayo along with his family, which included his wife,
Winfilda Zvavamwe, the appellant in this matter. Trouble started when the late
Elina Nyoni's children, the first and second respondents, wanted to perform the
traditional ceremony known as ''umbuyiso '' in Sindebele in 2007 which had not
been performed from the time their mother died. The appellant, whose husband,
Abias Zvavamwe, had died leaving her in occupation of the house, refused to let
them perform the ceremony at the house arguing that she had since inherited the
house from her husband.
Prior to that, the estate of the
late Elina Nyoni had been registered with the Additional Master as DRB
No.1135/2001 with Annah Sibanda, the daughter who is the second respondent in
this matter being appointed executrix.
A Distribution Plan, in terms of
which the only asset of the estate, House No.7547/8, Tshabalala, Bulawayo, was
to devolve to the surviving children and grandchildren of the late Elina Nyoni,
was drawn up and submitted to the Additional Master. It is that Distribution Plan
which the appellant contested and when the matter was heard by the court a quo
it found in favour of the respondents and directed that the winding up of the
estate must proceed in terms of that Plan.
Aggrieved by that decision, the appellant noted an
appeal to this court on the following grounds:
''1. The learned magistrate erred
in law in making an order that all children of the deceased were entitled to
inherit in equal shares in terms of Amendment 6 of 1997 of the Deceased Estates
Act (sic) when, in fact, the deceased died in 1986 and the Amendment does not
have retrospective effect.
2. The learned magistrate erred in evicting the appellant
upon 4 days notice of the order. Even if the order was correct, the appellant
was still entitled to a reasonable notice period.
3. Appellant therefore seeks an
order declaring that 2nd and 3rd Respondent (s) are not
entitled to inherit from the deceased estate and the deceased son, Abias
Zvavamwe, was the heir of the deceased estate in terms of the law at the time
of her death and that as such the Appellant, as the surviving spouse of Abias
Zvavamwe, is his heir and as such should inherit his estate.''..,.
The import of the appellant's
argument is that her late husband, Abias Zvavamwe, was the first born son of
the late Elina Nyoni and as such he was entitled, according to customary law,
to inherit her estate in his individual capacity and to the exclusion of the
other children, at the time of her death in 1986….,.
Counsel for the first and second respondents
strongly argued that even if customary law was applied, the late Abias Zvavanwe
was not entitled to inherit the estate on his own because according to
traditional Shona customary law whatever property a woman acquired was regarded
as her personal property which was distributed upon her death to all her
children. It was only the property of the man which was inherited by the first
born son.
I am of the view that this matter
is capable of resolution by reference to section 3 of the Customary Law and
Local Courts Act [Chapter 7:05] which sets out the choice of Law principles to
be applied in a situation of this nature. That provision reads as follows:
''3. Application of Customary
Law
(1) Subject to this Act and any
other enactment, unless the justice of the case otherwise requires -
(a) Customary law shall apply in
any civil case where -
(i) The parties have expressly
agreed that it should apply; or
(ii) Regard being had to the
nature of the case and the surrounding circumstances, it appears that the
parties have agreed that it should apply; or
(iii) Regard being had to the
nature of the case and the surrounding circumstances, it appears just and
proper that it should apply;
(b) The General Law of Zimbabwe
shall apply in all other cases.
(2) For the purposes of paragraph
(a) of subsection (1) - 'surrounding circumstances' in relation to a case,
shall, without limiting the expression, include –
(a) The mode of life of the
parties;
(b) The subject matter of the
case;
(c) The understanding by the
parties of the provisions of customary law or the general law of Zimbabwe, as
the case may be, which apply to the case.
(d) The relative closeness of the
case and the parties to the customary law or the general law of Zimbabwe as the
case may be.''
In Chapendama v Matende &
Another 1999 (1) ZLR 534 (H)…, CHINHENGO J stated;
''The recognition and exhortation
that the law must adapt and be deliberately adapted to changing social and
economic conditions is indeed a fundamental premise on which our jurisdiction
in the area of customary law will develop as well as being a basis on which
justice will be done and be seen to be done. The correct balance must, however,
be struck between judicial law-making and legislation. Where the law requires to be revolutionised,
the function is largely that of Parliament to change it. But where, within the
framework and spirit of the existing law, it is possible for the courts to
interpret it in a purposive manner and render it more useful in changed
circumstances, the courts will, by such purposive and progressive interpretation,
achieve the same goal. The purpose of the law is to serve the people and meet
their expectations.''
I find myself totally in
agreement with that pronouncement.
In a case such as the present,
where the legislature has legislated to give the courts the latitude to apply
either customary law or general law having regard to the nature of the case and
the surrounding circumstances, in my view, the courts should purposely refrain
from applying customary law if its application would lead to an injustice. See
Jengwa v Jengwa 1999 (2) ZLR 121 (H)…,; Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…,.
In my view, it is absurd for a
first born son to seek to inherit the entire estate of his parent to the
complete exclusion of his siblings. Other than the historical accident of being
born ahead of others there is no other justification for such a situation. The
law must be used to protect the other members of that family against the
acquisitive tendancies of the first born son as clearly all of them are
entitled to benefit from the estate. It was probably with that mischief in mind
that the legislature introduced the amendments to the Administration of Estates
Act [Chapter 6:01].
Happily, though, in this case,
the issue is resolved by the fact that the late Elina Nyoni herself inherited
the house from her late husband. She could not have inherited the house and
taken transfer, as the papers show, on 1 February 1969, if the parties were
applying customary law. The concept of the wife inheriting from her husband
then only existed in general law. It must follow, therefore, that the family
long agreed to apply general law principles of inheritance and not customary
law. The late Abias Zvavamwe, therefore, was not entitled to inherit the house
in his own right and did not so inherit. The house should devolve to all the
children of the late Elina Nyoni including the grandchildren born of those
children who have since passed away.
The executrix of the estate had
already submitted a Distribution Plan approved by all concerned except the appellant.
It is in accordance with that Distribution Plan that the estate should be wound
up.
Accordingly, I make the following
order; that
1. The appeal be and is hereby
dismissed.
2. All the children of the late
Elina Nyoni are entitled to inherit House No.7547/8, Tshabalala, Bulawayo in
equal shares with the shares of those that are now deceased going to their
respective children, the grandchildren of the late Elina Nyoni.
3. The matter is remitted to the Magistrates'
Court for purposes of the completion of the winding up of the estate in terms
of the Distribution Plan already prepared.
4.
The costs of the appeal shall be borne by the Estate late Elina Nyoni.
