MATHONSI J: The late Kenneth Kudzai
Pamacheche (“the deceased”) was a polygamist.
He had met the plaintiff in 1966 and a couple of years later he married
her customarily. On 30 December 1977
they registered their union in terms of the then African Marriages Act. That marriage certificate is part of the
record. When this dispute started the
validity of that marriage was questioned although it is not clear why. That issue however has not been placed before
me and will not be addressed by this judgment which proceeds on the strength
that the plaintiff and the deceased had a customary marriage. The marriage was blessed with 6 children.
It would appear that in the month of December 1977 the deceased was in a
marrying mood because on 21 December 1977, and unbeknown to the plaintiff, the
deceased had registered yet another customary marriage in terms of the African
Marriages Act, [Chapter 238], this time with the first Defendant, a divorcee he
had met much later. The two wives did
not live together and it would appear that the deceased never introduced them
to one another.
Sometime in 1980 the plaintiff and the deceased purchased House No. 7
Cheryl Road Eloana also known as stand 75 Eleona Township of subdivision IB of
Farm 1 of Matsheumhlope Bulawayo. They
moved into the property, where the plaintiff has remained to this day. From the papers the first Defendant was
generally resident at her own house, No. 24 Aylmer Road Saurcetown, Bulawayo.
On 15 April 1992, the deceased and the first Defendant upgraded their
customary marriage to one in terms of the Marriage Act, [Chapter 5:11]. Bearly a year later on
25
September 1993, the deceased tragically met his death in a road traffic
accident. Problems then started which
have seen the dispute being taken to the customary law court, then to the
Supreme Court which referred it to the fourth defendant for adjudication and
finally to this court, a journey of almost 20 years.
The matter was set down for trial on 10 May 2011 by all the interested
parties and a notice of set down signed by all of them, including the first
Defendant's legal practitioners on
8
April 2011, is filed in the record.
Notwithstanding that, the first Defendant defaulted at the trial.
At the commencement of trial Ms N
Ncube for the second and third Defendants submitted that although they had
filed opposition, they were not contesting the plaintiff's claim and would
abide by whatever decision the court came up with.
The plaintiff then gave evidence to the effect that she was customarily
married to the deceased in 1968 and their union was blessed with 6
children. She resides at the house in
dispute having moved into it when it was purchased by herself and her deceased
husband in 1980. In the process of
buying the house they had secured a loan from Beverly Building Society in the
name of the deceased and the house was registered in the deceased's name.
She was employed by Zimbabwe Textile Workers Union as a
receptionist/typist and she basically took over the mortgage bond repayment,
the capital sum of which was $14000-00, local currency. As proof that she is the one who paid the
bond she had bank deposit slips bearing her signature and they totalled well
over 50% of what was paid to the bank.
The said deposit slips were submitted to the fourth Defendant in an
effort to prove her claim to the house but over the years the fourth Defendant
indicated that those deposit slips were lost.
At no time did the first Defendant live in the house in question and she
had absolutely nothing to do with it, did not contribute anything towards its
acquisition and only surfaced after the death of the deceased. It is the plaintiff and her children who have
always stayed at the house.
After the death of the deceased, Mr
N Lang, then a partner at Ben Baron
and Partners was appointed executor of the deceased's estate. When the dispute over the estate was dragging
on the parties tried to negotiate an out of court settlement. Those negotiations resulted in a concrete
agreement in terms of which the plaintiff and the first Defendant agreed that
the plaintiff was entitled to 50% share of the house by virtue of her direct
contribution towards its acquisition, presumably on the strength of the Beverly
Building Society deposit slips which have gone missing.
The plaintiff testified that the parties had agreed, on the basis of the
Supreme Court decision which declared the first Defendant sole beneficiary of
the estate, that the deceased estate owned the other 50% of the house. It was then agreed that the plaintiff would
purchase that 50% from the estate and take over ownership of the house. In pursuance of that agreement the house was
valued by B.T. Bell Estate agents on 20 December 1999 at $650 000-00, local
currency, and the plaintiff paid to the executor, through her legal
practitioners, Messrs Lazarus and Sarif
the sum of $325 000-00 to purchase the 50% share belonging to the estate.
The plaintiff was unable to produce proof of that payment alleging that
it is among those documents submitted to the fourth Defendant as she was laying
a claim to the house, which documents went missing.
It is the plaintiff's view that in light of that background she is
entitled to an order awarding to herself the entire house and directing that
the third Defendant should transfer the said house to her name. The plaintiff's evidence was corroborated by
correspondence between the legal practitioners, which is filed of record.
In a letter dated 18 August 2000 Mr
N Lang of Ben Baron and partners
stated as follows:
“We refer to the
above matter and to our recent telephone conversation. We confirm that the writer met with Ms Ncube and Mr Nkomo on the 16th
August 2000 and the following arrangement was made: The house will be revalued by Messrs Brian Bell Estate Agents. Mrs Winnie Pamacheche will be afforded an
opportunity to pay out the other heirs their respective shares in terms of the
proposal put forward on the 18th July 2000. The parties have yet to reach agreement, on
the time frame for Mrs Winnie Pamacheche to make the payment but we believe
this is a matter that can be resolved by the correspondence between the
parties.
It should be noted
that Esther Pamacheche has indicated that should Winnie Pamacheche be unable to
pay within a reasonable time she (Mrs Pamacheche) would like to have the
opportunity to purchase the house at the agreed valuation....”
Mr Lang
followed that up by another letter to Lazarus
and Sarif dated 3 October 2000 which reads in part as follows:-
“We refer to the
above matter and to our letter of the 18th August 2000. We would be grateful to receive your advice
as to when Winnie Pamacheche proposes to pay for the house. We would be grateful to receive this
information within the next fourteen days.”
Lazarus and Sarif
responded to that letter on 18 October 2000 as follows:
“We refer to your
letter dated the 3rd October 2000.
Please be advised that we are holding the money in trust and once we
agree on an amount we will pay. We shall
await to hear from you.”
Clearly therefore, at that stage an agreement to the effect that the
plaintiff would pay for the remaining ½ share of the house had been
reached. As the plaintiff's legal
practitioners were now holding the purchase price, after an evaluation had been
undertaken, I have no reason to disbelieve that the money was paid to the
executor thereby completing the sale to the plaintiff especially as it has not been
disputed that a lot of relevant and important documents proving plaintiff's
claim disappeared while in fourth defendant's custody.
I am however mindful of the fact that in August 2000 the parties had
agreed on a revaluation of the house. In
her evidence the plaintiff alleged that she paid $325 000-00 local currency
which was in compliance with a valuation of $650 000-00 made by Brian Bell
Estate Agents in December 1999. However
in the fourth defendant's record, which has been made available to me, there is
indeed another valuation report made by Brian Bell Estate Agents on 9 October
2000 placing the value of the house at $800 000-00.
I have no reason to disbelieve that when Lazarus and Sarif stated on 18 October 2000 that they were then
holding the money they had not taken into account that the plaintiff was then
required to pay $400 000-00 instead of $350 000-00. On a balance of probabilities, I believe that
as a result of the passage of time, the plaintiff may have overlooked that
detail.
I therefore find that indeed the plaintiff paid the executor for the
remaining ½ share of the house and is therefore entitled to the relief that she
seeks.
The matter should ideally end there but even if I am wrong in that
finding, I am fortified in my conclusion that the plaintiff is entitled to the
relief she seeks because, for a start, the parties appeared to labour under the
mistaken belief that the Supreme Court had crowned the first Defendant heir to
the estate. Nothing can be furthest from
the truth and it is difficult to comprehend why that mistake was perpetuated
for such a longtime.
I propose to trace the background of the Supreme Court's involvement so
as to demonstrate the fallacy if that notion.
The matter came before the Supreme Court under case No. SC 676/94 by
virtue of an appeal noted by Ben Baron
and Partners representing the first Defendant. This was after the District Court sitting as
an appellate Court, per Mr Mkandla, had burnt its fingers by issuing an order
recognising the plaintiff's marriage ahead that of the first Defendant and then
seeking to reverse its own decision.
The appeal was noted on the following grounds:
“BE PLEASED to take
notice that the Appellant wishes to note an appeal against the decision of the
district Court held at Bulawayo on the 3rd October 1994.
Appellant will aver
that the learned Provincial Magistrate was wrong in fact and in law in holding
that customary law applied.
Appellant will
further aver that the learned Provincial Magistrate was wrong in fact and in
law in holding that Appellant's civil marriage contracted in 1992 did not take
precedence over the customary union contracted by the first respondents in 1968
and registered by the first respondent in 1977.”
The matter eventually came before the Supreme Court and the results from
that Court are contained in an order issued on 1 April 1997, the essential part
of which reads:
“An appeal from the
judgment by the Magistrate at Bulawayo on the 3rd day of October
1994.
Bulawayo: Tuesday
the 1st day of April 1997.
Before the
Honourable Mr Justice Korsah, Judge of Appeal and the Honourable Mr Justice
Muchechetre, Judge of Appeal.
J Dyke, for the appellant
No appearance for
the respondents.
WHEREUPON, after
reading documents filed of record and hearing counsel,
IT IS ORDERED:
That the appeal be
and is hereby allowed.
That the orders by
the magistrates are set aside.
That the matter is
referred to the Assistant Master for the administration of the Estate of the
Late Kenneth Kudzaishe Pamacheche.
That any party
lodges whatever claim he or she deems fit in respect of the said Estate of the
late Kenneth Kudzaishe Pamacheche, which claim shall be adjudicated upon by the
Assistant Master.
That the
appellant's costs of this appeal be borne by the Estate.
BY THE COURT
NL.B MACHAKAIRE
ASSISTANT REGISTRAR.”
There is no other order that was
issued by the Supreme Court. The above
cited order must be read in conjunction with the notice of appeal. The court simply agreed that the District
Court was wrong in holding that customary law applied and that the first
Defendant's civil marriage took precedence over the customary marriage of the
plaintiff. It then remitted the matter
for adjudication by the fourth Defendant.
Nowhere does it say that the first Defendant is the sole beneficiary of
the estate.
I must mention that although the
parties lodged their claims to the fourth Defendant over the years there has
been a signal failure by the latter to adjudicate on any of the claims which
then led to this litigation.
I have already determined that the
plaintiff is entitled to the house in dispute by virtue of having contributed
to its acquisition and also paying for the other half of it to the
executor. I am happy that such result
accords with the current legal position, which admittedly, did not obtain at
the time of the deceased's death.
The house was purchased when the
deceased was married to the plaintiff in terms of what is now the Customary Law
Marriage Act, [Chapter 5:07]. The
plaintiff lived in the house from 1980 and was living in it at the time of the
deceased's death in 1992. At the time
the house was purchased the plaintiff's marriage was as valid as that of the
first Defendant and she and the deceased made their home at the house to the exclusion
of the first Defendant.
The current legal position is
governed by Section 68 of the Administration of Estates Act, [Chapter 6:01]
which was introduced by Act No. 16 of 1998.
I did discuss the effect of those provisions vis-a-vis a customary marriage sitting together with a civil
marriage in Ndlovu v Ndlovu and others
HB 10/11 (as yet unreported) at pages 4-5 and concluded at page 5 that;
“Where the deceased
is survived by two 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 two wives shared the
same house they are entitled to joint ownership. This is 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.”
Admittedly the provisions of the Administration of Estates Act referred
to do not have retroactive effect, but they have decisive dealt with the
mischief that arose in casu.
In the result, I make the following order:
1. The plaintiff be and is hereby
declared the owner of stand 75 Eleona Township of
Subdivision 1B of Farm 1 of Matsheumhlope, commonly known as No. 7
Cheryl Road, Eleona, Bulawayo.
2. The
3rd Defendant be and is hereby directed to effect transfer of the
said property to the plaintiff.
3. The plaintiff's costs shall be borne by
the Estate Late Kenneth Kudzaishe Pamacheche.
Lazarus
and Sarif plaintiff's legal practitioners
Ben Baron & partners,
third defendant's legal practitioners
