KAMOCHA J: The
first applicant Deborah Ngwenya is the biological mother of the second, third
and fourth applicants. She and her three
children seek an order of this court in these terms:-
“It is ordered:
1)
That
the purported winding up of the estate late Ronnie Ngwenya under DRB number
325/08 be and is hereby nullified;
2)
That
the appointment of the first respondent and the approval of the first and final
distribution account be and are hereby nullified;
3)
That
the third respondent be and is hereby directed to convene another edict meeting
of interested parties for the appointment of an executor to wind up the estate.
4)
That
the costs of this application shall be borne by the respondents.”
The facts giving rise to this matter which are common cause
may be summarized thus. On 23 July 1982
the first applicant got married to one Ronnie Ngwenya in terms of the African
Marriages Act [Chapter 238]. Her name
appears in the marriage certificate as Debra Sibanda. Their marriage was blessed with the three
children who are the co-applicants in this matter. The first applicant then separated with
Ronnie Ngwenya in 1992 – after a period of 10 years. She left the matrimonial home. Thereafter the parties went their separate
ways for 16 years although they were not formally divorced. It is not known what the applicant did during
the 16 year period of separation. She
only returned for the burial of Ronnie Ngwenya and claims to have met all the
funeral expenses.
In the meantime, Ronnie Ngwenya
contracted a marriage with Siphathisiwe Ncube the second respondent in terms of
customary law but the marriage was not solemnized in terms of the Customary
Marriages Act [Chapter 5:07]. All the
formalities of such a marriage were done and observed. The second respondent accordingly qualifies
as a spouse of the late Ronnie Ngwenya in terms of section 68(3) of the
Administration of Estates Act [Chapter 6:01] “the Act”.
The second respondent lived with the
deceased at house number 6613 Nkulumane, Bulawayo from the time she got married
to him in 1992 until he died on 24 April 2008.
She looked after the deceased during the time he was sick until he
passed on. She brought up the second,
third and fourth applicants who had been left behind with their father by their
biological mother.
House number 6613 Nkulumane was
acquired in August 1989 while the first applicant still lived with the
deceased. When she departed for some
unknown destination in 1992 the second defendant commenced to live with the
deceased later that same year in October 1992 at the house. The house was renovated. The second defendant contributed towards the
renovations to the house by paying back the money which had been borrowed to
effect the renovations. The payments
were made monthly until the debt was liquidated. The payments were jointly made with the
deceased. She used to run a poultry
project.
It is common cause that the second
defendant had lived with the deceased in the said house for nearly 16
years. It is not known where the first
applicant lived when she was not in Zimbabwe.
She also appears to have been living in South Africa even at the time
the deceased died. She has not claimed,
in her papers filed of record that she used to return home during the 15 years
she was away. Neither has she claimed to
have provided her conjugal obligations to the deceased during that period.
On the contrary, she regarded the
marriage as having come to an end from the time she left the deceased at the
matrimonial home. In order to legally
terminate the marriage she instituted divorce proceedings in the magistrates'
court shortly after her departure under case number CC 934/92. Unfortunately the matter dragged on and on
from 1992 to the time the deceased passed on in April 2008.
Similarly the deceased regarded the
marriage as having been terminated immediately after the departure of the first
applicant from the matrimonial home. He
then on regarded the second respondent as his wife for 15 years. She was the one who was looking after his
three children the first applicant had left behind and had a child with
her. Deceased was anxious to have the
marriage dissolved without any delay. By
24 November 1992 he had this to say to the first applicant's lawyers through
his legal practitioners.
“Dear Sirs
Re:
Debra Ngwenya vs Ronnie Ngwenya
Please be advised that our client
wishes that this matter be finalized by January, 1993.
We would be grateful if you were to contact your client with
a view to arrange a trial date for that month.
Yours faithfully
Brassel Sigidi and Partners”
Unfortunately for both parties the
marriage could not be dissolved before the death of the husband. The actions of the parties were those of the
people who had divorced as can be seen from the foregoing.
The first applicant was not living
at the house when the deceased died. She
had last lived there some 15 years ago and only returned to attend the
deceased's funeral. Whereas the second
respondent lived in the house with the deceased for nearly 16 years until he
passed on. She is entitled to received
ownership of the house and all household goods and effects thereat in terms of
section 68F(2)(c )(i) of the Act.
The first applicant alleged that she
had contributed towards the acquisition of the house but provided no proof to
that effect. She was not a joint owner
of the house. It is registered in the
name of the deceased. She has no
entitlement to the house as she cannot be regarded as a surviving spouse in the
circumstances in terms of the Act.
In the result, I would hold that she
was not a surviving spouse while holding that Siphathisiwe Ncube is the sole
surviving spouse.
I now turn to the claims of her
children, the second, third and fourth respondents who are now adults. They had filed their claims which were
considered before the estate was wound up.
If they had been aggrieved by the decision of the Assistant master they
should have appealed to this court in terms of section 68J of the
Administration of Estates Act [Chapter 6:01].
They did not do so but chose to file this application which is devoid of
any merit.
Consequently in the light of the
foregoing the application is dismissed with costs.
Messrs Coghlan & Welsh, applicants' legal practitioners
Messrs Moyo & Nyoni, 1st
and 2nd respondents' legal practitioners
