MWAYERA J: Acquisition of property if done above board
certainly assists the human race to live comfortably. It is what happens
between the relations of the deceased which is worrisome and cause for
concern. The intended comfort brought about by acquisition of material
things invariable turns into volatile squabbles with the living claiming they
have more rights than all the other people and claiming they were the closet to
the deceased or departed.
The opposed application before me was occasioned by
disagreement over a deceased estate. The applicant sought for an order that
1.
The marriage between the Late Godfery Zakeo Mahenga and Eunice Agnes Chitambara
be and is hereby declared null and void.
2.
The customary union between Godrey Zakeo Mahenga and Christine Goremushandu be
and is hereby declared valid for the purpose of winding up of the estate of the
late Godfery Zakeo Mahenga.
3.
The appointment of Eunice Agnes Chitambara as the Executrix of the Late Godfrey
Zakeo Mahenga be and is hereby declared void.
4.
The estate is hereby reopened for the proper appointment of the Executrix and
redistribution of the matrimonial assets of the estate.
5.
The transfer of ownership of Stand 525 Mabelreign Township Harare and
Subdivision 4 of Hippo Valley Estate, Chiredzi into Eunice Chitambara's name be
and is hereby declared null void and that the Registrar of Deeds and the
Ministry of Lands, Lands and Resettlement endorse on their respective
registered that cancellation.
6.
That the first respondent pays the costs of this application.
It was apparent from papers and during submissions that the
applicant insisted the application was properly before the court because
prescription could not attach since the applicant's claim was that she was
customarily married to the deceased and as such claim was based on customary
law. Clearly the applicant is seeking to apply the Administration of
Estates Act [Cap 6:01], the Deceased Estate Succession Act [Cap
6:02] which clearly points the law the applicant seeks to apply is general
law. The Prescription Act [Cap 8:11] would then come into play and the
relief sought has prescribed. The Act gives the claim prescribes after 3
years. Even if one was to go by when the debt became due it is on record
the second applicant once approached the courts on the same matter showing he
had knowledge of his father's death and registration of the estate. The
coming in 8-9 years after the winding up of the deceased estate cannot be
viewed as reasonable in the circumstances more so given the lack of clarity on
applicant's claim. The first applicant simply claims she was customarily
married to the deceased and chose not to commit herself on the allegation that
she was separated from the deceased and was married to Dzikamai Katsidzira and
bore a child. She cannot surely have her cake and eat it the same time.
For her to argue she was not given“gupuro” divorce token yet she was
married to another man a factor she did not dispute clearly portrays lack of
genuineness on marriage. She could not have been married to both
men. Her marriage to Katsidzira marked divorce with the deceased. The
Estate was registered advertised and accounts allowed to lie for inspection. No
objection was raised and then distribution occurred. No complaints or
application was lodged as prescribed in s 29 (1) of Administration of Estates
Act [Cap 6:01]. About 8-9 years down the line the applicant approaches
the court for redress with no reasonable explanation for the delay. There is no
clarity in the applicant's claim given her separation from the deceased Godfrey
Zakeo Mahenga and that the house was in the name of the deceased. Having
pointed out the delay of 8-9 years in bringing action is unreasonable in the
absence of an application for condonation of delay the application is dealt a
fatal blow.
The parties addressed further that the matter is resijudicata
since this court disposed of the same matter based on the same facts on
HC4755/12. The second applicant was ruled to have no legal basis to claim 525
Mabelreign and that he had no right to Plot 5 Subdivision of Hippo Valley
Estates Chiredzi which was allocated to the deceased in his personal capacity
under the land resettlement programme. The late Godfery Zakeo Mahenga had no
real rights to the property in question and as such it could not accrue to the
deceased estate. See Matsinde v Nyamuku 2006 (2) ZLR
2000. It was spelt out that the transmissibility of rights or action
depends on whether they are rights or action in rem or personna.
The late Manhenga acquire land through government resettled program and thus
had personal rights. The matter brought in by the second applicant apart from
being rendered fatal by prescription is also resjudicata. Further it
is apparent as conceded by Mr Masendeke for applicant the relief
sought calling upon the Ministry of Lands to cancel the offer letter and re
allocate Plot 5 of Hippo Valley Chiredzi is not tenable. Obviously the
relevant Ministry has a direct and substantial interest in matter. It
would be incompetent for the court to allow the matter to proceed without the
joinder or judicial notice of proceedings to that party. The case of Anabas
Services (Pvt) Ltd v Ministry of Health and Ors 2003(1) ZLR247 is
quite instructive.
It is also important to mention in passing that it emerged
in submissions that the applicant was seeking to have the marriage of the first
respondent to the late Godfrey Zakeo Mahenga nullified. Our law is very clear
that the existence of a customary law marriage cannot nullify a civil marriage
or existence of any other marriage. The order sought is therefore not competent
given the legal position. The position remains an unregistered customary law
union cannot cause annulment a civil marriage. If anything the marriages can co
exist. Without necessarily delving in detail into merits of this case for the
obvious reason that the matter has been disposed of by points in limine,
it is worth noting that if the first applicant was in a relationship to
Dzikamai Katsidzira and bore a child Tafadzwa Chelsea Katsidzira. There is no
issue of marriage to the late Godfery Zakeo Mahenga, and there is no debate
about pinning a claim on respondents or even the estate of the late Godfrey
Zakeo Mahenga. It is apparent that about 9 years after the winding up of an
estate the applicants sought to approach the court for reopening of the “Estate
of Late Godfrey Zakeo Mahenga” which part is not cited in the proceedings. The
squabble is centred on property which applicants feel has to be
redistributed. From both written and oral submission it became apparent
that the first applicant's matter could not be entertained beyond the raised
points in limine. The respondents clearly and conclusively showed the
matter had not only prescribed but that there was a snag of non joinder of the
relevant parties. Further in respect of the second applicant the
application has not only been rendered fatal by prescription but also non
joinder and the fact that the matter is res judicata. The same
question was decided on and the matter involved the same parties. It is
clear from the foregoing there is no need to go beyond the points in limine
as they have conclusively disposed of the matter.
Accordingly it is ordered that the applicant's claim
(1) Be
and is hereby dismissed.
(2) The
applicants are to pay the costs of this suit jointly and severally the one
paying the other being absolved.
Muzenda & Partners,
applicants' legal practitioners
Thlodhana
& Associates, 1st respondent's legal
practitioners
