This is
an opposed application in which both applicants seek relief in the following
terms;
“IT IS
HEREBY ORDERED THAT
1.
The alleged Will of Takavengwa Lovelace Samuriwo, dated 2 December 1992, and
accepted by the 5th respondent on 30 May 2012 be and is hereby
declared as null and void.
2. The 1st,
2nd and 3rd respondents shall pay costs of suit at a
legal practitioner and client scale.”
The
first applicant, Fatima Magedi, is the surviving widow of the late Takavengwa
Lovelace Samuriwo (the late Samuriwo). She entered into a customary law union
with the late Samuriwo and apparently no children were born of this customary
law union. The second applicant, Kennedy, is the late Samuriwo's adult son born
out of wedlock with another woman whose further particulars are not furnished
by both applicants.
The
first, second and third respondents are the late Samuriwo's adult children and
beneficiaries of his estate. They were born out of the marriage between
the late Samuriwo and the late Perpetua Samuriwo….,.
The
background facts of this matter are as follows;
The
marital history of the late Samuriwo seems to be largely common cause except as
regards the relevant dates. Firstly, the late Samuriwo married the late
Perpetua Samuriwo, the mother of the first, second and third respondents. The
type of the marriage is not stated but from what is alleged it was a registered
marriage. The late Perpetua Samuriwo died in 2001 although the first
applicant claims it was in 2005. I am more inclined to accept the version
of the first, second and third respondents who are Perpetua Samuriwo's children
and are likely to know better the date their mother passed on unlike the first
applicant who was not yet married to the late Samuriwo by then. After the death
of Perpertua Samuriwo, the late Samuriwo married Joseline Chiedza Mukupe in
February 2003 in terms of an unregistered customary law union and the union was
dissolved or ended in October 2009. No children were born out of this
union. The late Samuriwo then entered into a customary law union with the first
applicant which union ended when the late Samuriwo passed on 29 February
2012. No children were born out of this union. The date the first
applicant and the late Samuriwo entered into the union is in issue. The first
applicant alleged it was in 2009 but the first, second and third respondents
allege it was in 2011. This dispute, in my view, is immaterial to the issues to
be resolved in this matter. The point is made that whatever the date
(year) the first applicant and the late Samuriwo entered into the unregistered
customary law union the first applicant is the widow of the late Samuriwo.
The
late Samuriwo died testate on 29 February 2012.
On
31 August 2012, the fifth respondent (the Master of the High Court) accepted
the last Will and Testament of the late Samuriwo which had been authored on 2
December 1992 when the late Samuriwo was married to the late Perpetua Samuriwo
and they had already had the three children being the first, second and third
respondents. The last Will and Testament (the Will) by the late Samuriwo
is attached (a copy) to the applicants' founding affidavit as Annexure A to
A3. As per that Will, the late Samuriwo bequeathed his entire estate to
the first respondent, Ruramai Samuriwo, failing which the entire estate would
devolve, in equal shares, between the second respondent, Yvonne Samuriwo, and
the third respondent, Tinashe Samuriwo, and also granting a life usufruct to
his now late wife Perpetua Samuriwo in respect of the Bluffhill house in
Harare.
It
is not clear as to when the second applicant was born, but his mother, it seems,
was never married to the late Samuriwo. The first, second and third
respondents allege that he was later introduced into the family.
The
first and second applicants seeks an order to have the Will of the late
Samuriwo, dated 2 December 1992, and accepted by the Master of the High Court,
declared null and void. According to both applicants the basis for this is
two-fold;
i)
That the Will was invalidated when the late Samuriwo contracted an unregistered
customary law union or marriage with the first applicant, either in 2009 as per
the first applicant, or in 2011 as per the first, second and third respondents.
ii)
That the Will is probably fake as the Master accepted a photocopy and that no
original copy was ever produced.
In
this regard, reference is made to the correspondence between the Master and the
first applicant and also between the Master and the second respondent.
The
application is opposed by the first, second and third respondents….,.
I
now turn to the question of whether the Will accepted by the Master of the High
Court is a fake one as it is allegedly in photocopy form and that no original
copy was produced.
This
point should not detain us at all. All what the applicants are saying is
that the Will should be fake because it is not in original form. The
applicants do not refer to any provision in the Wills Act [Chapter 6:06] which
provides for such a requirement. The requirements for a valid Will are provided
for in section 8(1)(a) to (d) of the Wills Act [Chapter 6:06]. There is no
specific requirement that the Will should be in original copy form, although
generally that would be desirable. In fact, section 8(5) of the Wills Act [Chapter
6:06] gives the Master power to accept a Will for the purposes of the
Administration of Estates Act [Chapter 6:01] even in circumstances the Will
does not meet the requirements in section 8(1) or (2) and section 9(2), (3) and
(4) of the Wills Act [Chapter 6:06].
On
this basis alone, I am not persuaded by the argument taken by the applicants in
this regard. The applicants did not specify the basis at law for the Will
to be deemed invalid if it is not in original form.
Assuming
that I may be wrong in the finding I have made, the Master of the High Court's Report,
dated 12 July 2013, put the matter to rest. The Master of the High Court
accepts and acknowledges the apparent error which may have been made by a
junior officer in the Master of the High Court's Office as regards the communication
referred to by the applicants between the Master's Office and the first
applicant and the Master's Office and the second respondent…., The Master
of the High Court, in the report filed of record, clearly states that the
original Will was filed as a Live Will in 1992 with the Master's Office and
that the Will the Master of the High Court considered and accepted in casu is
an original Will and not a photocopy. The Master of the High Court pointed
out that the Live Will never went missing. The fact is supported by a
letter written to the late Samuriwo by A.J.A. Peck Legal Practitioners…, which
states as follows;
“Your
Will
We
have to advise that your Will was registered at High Court under reference
L.W.263/92 dated the 10th of December 1992.”
The
letter in question is dated 16 December 1992. Its authenticity has not
been put into issue.
The
argument by the applicants that the Will accepted by the Master of the High
Court is probably fake and in photocopy form lacks merit and is dismissed.
This
leads me to that issue which is whether an unregistered customary law union (or
marriage although I prefer the word union) entered between the first applicant
and the late Samuriwo invalidates the Will.
The
applicants' position is that it invalidates the Will whereas the first, second
and third respondents argue that it does not invalidate the
Will. Surprisingly, both parties rely on the same provision, section 16(1)
of the Wills Act [Chapter 6:06] in support of each party's position.
This
dispute, therefore, can be resolved on the basis of the interpretation of section
16(1) of the Wills Act [Chapter 6:06].
Section
16(1) of the Wills Act [Chapter 6:06] provides as follows;
“16. Effect of testator's subsequent marriage
on Will
(1) Subject
to the section, a Will shall become void upon the subsequent marriage of a
surviving testator.”
The
applicants submitted that the Will made by the late Samuriwo became void when
the late Samuriwo entered into a customary law union with the first applicant
in 2009 or 2011 which Will had been made on 10 December 1992.
The
question I have to answer is whether a customary law union or an unregistered
customary law marriage is regarded as a marriage for the purposes of the Wills
Act [Chapter 6:06].
Section
2 of the Wills Act [Chapter 6:06] defines what is a marriage for the purposes
of that Act as follows;
“'Marriage'
includes a marriage solemnised in terms of Customary Marriages Act [Cap 5:07].”
The
applicants argue that the definition of marriage referred to above does not
exclude an unregistered customary law marriage as this is not specifically
stated.
I
do not find favour with this rather weird interpretation.
It
is trite that a civil marriage contracted after the execution of a Will
invalidates that Will. See In re: Savanhu 1990 (2) ZLR 177 (H)
(although the case does not deal with this specific point and is distinguished
from this case).
In
the case of Mapenzauswa v Muskwe & Ors 2008 (1) ZLR 376 (H)…., KUDYA J, in
explaining the genesis of the enactment of section 16(1) of the Wills Act [Chapter
6:06] referred to the case of Savanhu v Heirs
Estate Savanhu 1991 (2) ZLR 19 (S)…, in which GUBBAY CJ sets out the
legislative basis for promulgating section 16(1) of the Wills Act [Chapter
6:06] as follows;
“It
is plain to me that by enacting the provision, the lawmaker was minded to alter
the common law in accordance with which a Will is not revoked by the subsequent
marriage of the testator. See Ludwig v Ludwig's Executor
(1848) 2 Menz 452; Shearer v Shearer's Executors 1911 CPD 813; Brande NO v Perlmutter & Ors
1969 (2) RLR 103 (A) at 109 C; 1969 (4) SA 101 (RA) at 106. It was appreciated
that the operation of such a principle would cause an injustice and untold
hardship. So, in 1929, a change in the law was effected by the introduction of
s2 of the former Deceased Estates Act, presently superceded by s16(1) of the
Wills Act. Its object is to afford some measure of protection to the new spouse
of the testator who had been previously married, and to any issue, whether born
to the parties or adopted by them. The provision contemplates more than
the mere conversion of an existing polygamous matrimonial union to one of
monogamy. It envisages a necessary change, brought about by the subsequent
marriage, to the status of both the spouse and testator to that of a married
person – from a bachelor, divorce or widower in the case of a man and from
spinster, divorce or widow in the case of a woman. It is designed to avoid
a situation in which the Will of one or each of them, which predated the
subsequent marriage, makes no provision for the other's new spouse.”
The
question which arises is whether the protection referred to by CHIEF JUSTICE
GUBBAY has been extended in our law to those women who opt to marry in terms of
an unregistered customary law marriage like in this instant case.
The
position of the law, in my view, currently is that an unregistered customary
marriage is not a marriage generally in the eyes of the law except when such
specific recognitions is given by a particular statute or
enactment. Section 3 of the Customary Marriage Act [Chapter 5:07] makes
the point very clear and it provides as follows;
“3. Marriages not to be valid unless
solemnised
(1)
Subject to this section, no marriage contracted according to customary law,
including the case where a man takes to wife the widow or widows of a deceased
relative, shall be regarded as a valid marriage unless -
(a)
Such marriage is solemnised in terms of this Act.”
The
limited recognition given or afforded to an unregistered customary law marriage
is provided for in section 3(5) the Customary Marriages Act [Chapter 5:07]. It
provides as follows;
“(5)
A marriage contracted according to customary law which is not a valid marriage
in terms of this section shall, for purposes of customary law and custom
relating to status, guardianship, custody and rights of succession of the
children of such marriage, be regarded as a valid marriage”…,.
Despite
the progressive legislative provisions enacted since independence and positive
judicial activism, the legal disabilities suffered by women who opt to marry
under the unregistered customary law marriage remain in the various spheres of
our law. As an example, the Matrimonial Causes Act [Chapter 5:13] is not
applicable in relation to such unregistered customary law marriages as such
women would have to find some cause of action under general law if they are to
benefit from the matrimonial estate outside “maoko property” at the dissolution
of such a union.
It
is my view that section 16(1) of the Wills Act [Chapter 6:06] has only extended
the said protection to those women married in terms of a registered customary
law marriage [Chapter 5:07]. I do not believe that the legislature, in section
2 of the Wills Act [Chapter 6:06], intended to include unregistered customary
law marriages. If that is the case, then the definition would simply have
referred to customary law marriages, excluding the need for registration. It
would be absurd for the applicants to state that the definition of a marriage
in the Wills Act [Chapter 6:06] does not exclude unregistered customary law
union or marriages. While one may make a case for the need for legislative
intervention to protect those women who enter into unregistered customary law marriages
to be protected by the provisions of section 16(1) of the Wills Act [Chapter
6:06], I do not share the view that the law, as it is now, provides for
such protection. The protection has only been extended to those married in
terms of registered customary law marriages as provided for in [Chapter 5:07].
My
finding is that the customary law union or marriage which the first applicant
entered into with the late Samuriwo did not invalidate the Will made by the
late Samuriwo on 10 December 1992 prior to this union. In conclusion, I hold
the view that the Will is valid.
Accordingly,
the application is dismissed with costs.
