KAMOCHA J: The applicant in this matter seeks an order of this court in the
following terms:
“It is hereby ordered that:
(1)
The Will of Gabriel Siwela who died testate on the 10th of July,
2012 is hereby declared null.
(2)
There is no order as to costs.”
The facts of
this case as narrated by the applicant are as follows.
The applicant is by birth, a Botswana
citizen. In 1973 she married the deceased under a customary law
union. Their marriage was registered seven years later under the African
Marriages Act [Chapter 238] on 18 March 1980.
The couple had four children two of whom
are now late but two of them namely; Virginia Siwela (born in 1977) and Ntando
Siwela (born in 1987) are still alive. Before the deceased married the
applicant he had other children including Nozizwe Siwela.
Applicant averred that the deceased and
herself started living together at number 120 Ntabazinduna Flats in
Barbourfields Bulawayo. Through the joint hard work of both of them they
managed in 1985 to buy an immovable property in Malindela suburb
Bulawayo. The property is known as 11 Blake Road, Malindela also known as
a piece of land situate in the District of Bulawayo measuring 1190 square
metres called stand 3766, Bulawayo Township of Bulawayo lands.
The property was their matrimonial home
which they bought and developed together. It was her averment that the
parties never separated at any point during the subsistence of their marriage
until the death of the deceased separated them.
Her late husband worked for Meikles Stores
and retired in 2002.
I pause to observe that at that point the
parties had been living in the matrimonial home for 17 years when the deceased
retired. After his retirement the applicant continued to provide for the
family single handedly as she was then the only one employed. She carried
on with her obligation until the untimely death of the deceased in July 2012.
Applicant further averred that she had
always dedicated her energy to the joint development of their estate and the
improvement of their matrimonial home. Her contribution was both direct
and indirect.
Little did she know that the deceased had
executed a Will in 2001 wherein he directed as follows in paragraphs 3 and 4.
“
3
I bequeath the
immovable property known as certain piece of land situate in the District of
Bulawayo measuring 1190 square metres called stand 3766 Bulawayo Township of
Bulawayo Lands to my daughter NOZIZWE SIWELA.
4
The rest and
residue of my estate I bequeath in equal shares to Virginia Siwela and NOTHANDO
SIWELA.” The applicant has not taken issue with the validity of the Will at
all. Her contention is that she is a joint owner of the property having
contributed towards the acquisition of the property both directly and
indirectly. They acquired the property together although it is registered
in the name of the deceased.
At the time the Will was executed, the
parties had been leaving in the home for 16 years. The parties were
working jointly to effect improvements on the property. At the time the
deceased passed on they had lived in the house for 27 years and had been
married for 39 years.
Her evidence that the deceased and herself
acquired the property together has not been controverted and remains
intact. The opposing affidavit by the unregistered legal practitioner is
rejected on two fronts. First section 9 (2) of the Legal Practitioners
Act [Chapter 27:7] prohibits an unregistered legal practitioner from appearing,
pleading or acting in the capacity of a legal practitioner for and on behalf of
any other person in any capacity, suit or other proceedings in court of civil
or criminal jurisdiction. Secondly Mr Collier cannot positively swear to
the facts relating to the joint ownership of the property by the parties.
He has no knowledge whatsoever of how the property was acquired. It is
undesirable for a lawyer to depose to affidavits on behalf of litigants.
The fact that the property is registered
in the testator's name does not take the matter any further. About 80% of
properties in this country are not registered in the names of both parties
especially amongst the black people. The averments by applicant show that she
was clearly entitled to 50% share in the said property while the deceased was
entitled to 50% share also. This court accepts her averrements.
It was therefore not proper for the
deceased to bequeath what was not his. He could only lawfully bequeath
his half share to Nozizwe Siwela.
Having held that the applicant's
entitlement in the property under discussion is 50% it is held further that the
deceased's Will falls foul of the provisions of section 5 (3) (a) of the Wills
Act.
The Will is therefore of no force or
effect in so far as it purports to bequeath the applicant's 50% share in the
property. Clause 3 of the testament should accordingly read thus:
“I bequeath my
50% share in the immovable property known as certain piece of land situated in
the district of Bulawayo measuring 1190 square metres called stand 3766
Bulawayo Township of Bulawayo Lands to my daughter NOZIZWE SIWELA.”
At the hearing of the matter the legal
representatives of the parties advised the court that they were in agreement
with the above findings but indicated that they were still discussing the issue
of whether or not the property should be sold in the light of the applicant's
advanced age. She is well above 60 years and has nowhere to go as she
came from Botswana 41 years ago. She cannot afford to buy another house
as she is now out of employment. They advised this court that they would
report to it on or before 7 March 2014.
In conclusion, clause 3 of the Will was
amended to read as in the penultimate paragraph supra.
Bulawayo Legal Project Centre,
applicant's legal practitioners
Webb,
Low & Barry, first respondent's legal practitioners
