The two applicants are the
surviving children of the late Derick Nyathi who died intestate on 16 January
2007. At the time of his death, the late Derick Nyathi was married to the late
Siphiwe Nyathi who survived him; they having been married on 14 April 1989 in
terms of the Marriages Act [Chapter 5:11]. They had no children.
Siphiwe Nyathi died intestate
five (5) months after the death of her husband, on 22 June 2007. She is
survived by her parents.
At the time of her death, the
late Siphiwe Nyathi had been appointed executrix dative of the estate of her
husband by Letters of Administration issued on 3 April 2007. She had, in the
process of administering the estate, advertised it according to law and
prepared a First and Final Distribution Account in terms of which she, as the
surviving spouse, was to inherit, among other properties, Stand 2182 Emganwini
Bulawayo. The two applicants were to each inherit a child's share of their
father's estate. That distribution account was yet to be approved by the fourth
respondent when she died intestate.
After the death of Siphiwe
Nyathi, the first applicant and the first respondent were appointed joint
executor and executrix dative respectively of her estate by Letters of Administration
dated 16 October 2007. The first respondent then prepared a First and Final
Distribution account in terms of which the bulk of the property of the late
Derick Nyathi and the late Siphiwe Nyathi was to devolve to the parents of the
latter, Madli Ncube and Jester Ncube in equal shares.
The first applicant, as
co-executor, refused to sign the account, and, instead, this application was
launched in which the applicants seek an order declaring that the estate of the
late Siphiwe Nyathi is incapable, under intestacy law, of inheriting from the
estate of the late Derick Nyathi. They would like a declarator that the two of
them are the rightful beneficiaries of the estate of their late father.
Counsel for the applicants argued
that under the common law of intestate succession, a deceased estate cannot
inherit as heir ab intestate. He relied heavily on the case of Swift v
Pichanick N.O. 1981 ZLR 622 (S) in which the Supreme Court discussed the
concept of the common law of intestacy that estates do not inherit on
intestacy.
While appearing to accept that
statute has made inroads into the common law of intestate succession in that
section 3A of the Deceased Estates Succession Act [Chapter 6:02] clearly allows
the surviving spouse to inherit from his/her deceased spouse, counsel for the
applicants argued that only a surviving spouse is entitled to inherit and not
that spouse's deceased estate. In his view, the fact that Siphiwe Nyathi died
before she could take over the estate of her late husband means that her
entitlement in terms of section 3A of the Deceased Estates Succession Act
[Chapter 6:02] died with her, as holding otherwise would offend the common law
position set out in Swift v Pichanick N.O. 1981 ZLR 622 (S).
Counsel for the respondents
strongly argued that in respect of the intestacy of Derick Nyathi, the date of
such intestacy should be reckoned at the time of his death and not at a
subsequent date and that the late Siphiwe Nyathi did, in fact, inherit from the
estate of her husband in terms of the provisions of the Deceased Estates
Succession Act. The inheritance of the applicants should be limited to that
provided for in the relevant statute.
In my view, the decision in Swift
v Pichanick N.O. 1981 ZLR 622 (S) has been completely misunderstood as it
certainly does not support the argument made on behalf of the applicants. While
the Supreme Court discussed the common law concept that estates do not inherit
intestacy in the context of a failed Will resulting in intestacy, the court was
never in doubt that what is paramount is the fact that the intestate heirs are,
in all cases, to be ascertained at the date when the intestacy occurs. That is
what is contained in the majority decision delivered by LEWIS JP with BARONS JA
agreeing.
In the present case, the
intestacy of Derick Nyathi occurred on 16 January 2007 when he died without a
Will. At that point, the provisions of section 3A of the Deceased Estates
Succession Act [Chapter 6:02] took effect and it provide:
“The surviving spouse of every
person who, on or after the 1st November 1997 dies, wholly or partly
intestate shall be entitled to receive from the free residue of the estate -
(a) The house or other domestic
premises in which the spouses or the surviving spouse, as the case may be,
lived immediately, before the persons death; and
(b) The household goods and
effects which, immediately before the person's death, were used in relation to
where such house or domestic premises referred to in paragraph (a);
Where such house, premises, goods
and effects form part of the deceased person's estate.”
It means, therefore, that by
clear provisions of a statute, Siphiwe Nyathi, as the surviving spouse of
Derick Nyathi, became entitled to receive, from the free residue of his estate,
the effects set out in that provision. Indeed, she even set in motion the
winding up process which was to result in the effects being transferred to her
name and produced a distribution account which was filed with the fourth
respondent before she died.
In my view, the situation
obtaining in this case is distinguishable from that where an estate inherits
intestate from another as would happen if the intestate heir dies before the
intestacy occurs. That view seems in line with that adopted by the Supreme
Court much later than Swift v Pichanick N.O. 1981 ZLR 622 (S) in Chaumba v
Chaumba 2002 (2) ZLR 51 (S) where the heir apparent, according to customary
law, Ishmael, had died before the estate was transferred to him. In arriving at
the conclusion that Ishmael's son should inherit, CHEDA JA stated…,;
“The fact that Ishmael may not
have been formally appointed heir before he died should not make any
difference, as his death cannot change the custom.”
In the present case, it is
unthinkable that after the legislature gave Siphiwe Nyathi an indisputable
right to inherit from her husband's estate, such right would be wiped away by
her death as to allow the applicants to inherit from their father as if his
wife had pre-deceased him. Such a construction would make nonsense of the
legislative intent to empower spouses to inherit, undisturbed, from the estates
of their deceased spouses. The applicants are certainly entitled to each
inherit a child's share from their father's estate in accordance with the
provisions of the law but certainly not to eclipse their stepmother's
entitlement.
I
therefore come to the conclusion that the application is without merit. It is
accordingly dismissed with costs.
