This
is an appeal wherein the appellant prays for her appeal to be upheld with costs
and the order of the court a quo set aside and replaced by the following:
“Applicant's
application to be declared the sole surviving spouse of the late Gibson Rice is
granted with costs.”
The
court a quo had confirmed the respondent as the first wife of the deceased.
In her
grounds of appeal, the appellant complained that:-
“1.
The court a quo erred in law in finding that respondent is a surviving spouse
in the estate of the late Gibson Rice when in fact the customary law union was
dissolved in 1978 respondent remarried in another customary law union;
2.
The court a quo erred in fact and in law in finding that there was undisputed
evidence that respondent and the late Gibson Rice had reconciled and formalized
a new customary law union;
3.
The court a quo erred in law and in fact by making a finding that the
respondent is the first wife when she was divorced in 1978 and appellant was
married in 1992;
4.
The court a quo erred in fact by failing to appreciate the argument presented
by the appellant as to why she should be declared the sole surviving spouse;
and
5.
The court a quo erred in law and in fact in making a finding that the Legal Age
of Majority Act 1982, did away with necessity of lobola and traditional rites
in customary law marriages thus in his view there was no need for the parties
who had reconciled to formalize their new union.”
The
facts, which are largely common cause, are that the late Gibson Rice had been
married to the respondent in an unregistered customary law union which was
blessed with seven (7) children. The late Gibson Rice and the respondent
dissolved their union in 1978. At the dissolution of the union the respondent
got the matrimonial home, being House Number 1780, Mkoba 14, Gweru as part of
the divorce settlement.
Thereafter,
the parties went their separate ways.
The
respondent got remarried to one Chakanetsa and thereby assumed her marital name
Maritha Chakanetsa. The respondent had two children, namely, Shadreck and
Stella, by Chakanetsa who unfortunately died in 1996. When the respondent
sought to reconcile with Gibson Rice, in 1997, he had already remarried the
appellant in 1992. This was another customary law union.
What
was not clear from the record of proceedings is whether or not the respondent's
endeavours to reconcile with Gibson Rice came to fruition. The witness called
by the respondent, one Respine Kariri, was so biased and untruthful that her
own legal practitioner ended up cross examining her and telling her not to tell
lies. She was not worth to be believed and was of no assistance to the court.
There was therefore no reliable and acceptable evidence to confirm that the
reconciliation was formalized. There was no basis upon which the trial court
concluded that the reconciliation was formalized. Similarly, there was no basis
for the finding that the respondent was the first wife of the deceased.
Assuming it had been proved that the reconciliation had been formalized she
still would not have been the first wife. She had lost that status at the
dissolution of her union with the deceased. Had the reconciliation been
formalized she would have been the second wife to the appellant who was married
in 1992 when she was still married to Chakanetsa. As already stated…, there is
no acceptable evidence to hold that the respondent was re-married by the late
Gibson Rice. The fact that he used to visit her at the house she was awarded at
the divorce in Mkoba 14 does not mean that he had remarried her. He had seven (7)
children with her. There was no reason to avoid her.
The
respondent was staying with the deceased at Number 3102 Mkoba 16 until his
death while the respondent stayed at her home. The appellant was the only
surviving spouse at the time the deceased died. Her appeal succeeds.
In
the result, it is ordered that the appellant be and is hereby declared the sole
surviving spouse of the late Gibson Rice.
