This
is an appeal against the whole judgment of the High Court of Zimbabwe, the
operative part of which consists of the following declaratory order:
“1. The only lawful intestate beneficiaries of the Estate
of the late Thomas Tavagwisa Zawaira are the children born of the late T.T.
Zawaira's union with the late Mrs F. J. Zawaira.
2. The costs of suit shall be borne by the estate of late
T.T. Zawaira.”
Background
The
facts giving rise to the appeal are uncontested and are set out below.
The
appellants are children born to the late Thomas T. Zawaira (the deceased) who
died intestate on 5 September 2003. The deceased had sixteen (16) children. Of
the sixteen (16) children, ten (10) were born out of wedlock and are the
appellants in casu. The other six (6) children, including the first respondent,
were born in wedlock. At the time of his death, the deceased was married to one
spouse, a Felistas Jimisayi Zawaira. The marriage was solemnised in August 1958
in terms of the Marriages Act [Chapter 5:11].
Having
died intestate, the deceased's estate was duly registered under DR988/07, with
the second respondent being appointed as the executor dative to the estate. In
executing her duties, the executrix lodged with the Master of the High Court a
second and final Administration and Distribution Account in terms of which she
distributed the estate equally to the surviving spouse and all the children of
the late T.T Zawaira. After the account was duly advertised, in terms of the
law, the first respondent lodged an objection with the Master of the High
Court.
The
nub of the objection was that the appellants, being children born out of
wedlock, could not lawfully succeed intestate their father or father's
relatives in terms of the general law:
“The
Final Distribution per second and final Administration and Distribution Account
currently lying for inspection awards all the property to all the late T.T.
Zawaira's children and surviving spouse in equal shares. I understand the legal
position to be that succession of an African, who contracts a civil marriage
like my father, is governed by the general laws as opposed to customary law. I
also understand that under general law (Roman Dutch) out of wedlock children
cannot succeed ab intestato to their father or the father's relatives. The
estate is only obliged to provide maintenance in terms of the Deceased Persons
Family Maintenance Act to those out of wedlock children who may need it. I
believe that any award to the 10 out of wedlock children that is not
maintenance is incompetent and unlawful.”
However,owH the above objection was dismissed
by the Master of the High Court, ostensibly on the basis that the Deceased
Succession Act [Chapter 6:02] and the
Deceased Persons Family Maintenance Act [Chapter 6:03] removed the distinction
between children born out of wedlock and those born in wedlock and that,
therefore, all children of the deceased had equal rights to inherit intestate.
Aggrieved
by the dismissal of his objection, the first respondent approached the High
Court seeking a declaratory order. The declaratory order sought was to the
effect that the only lawful intestate beneficiaries of the estate of the
deceased were his children born in wedlock. The application for a declaratory
order was granted in terms already set out above.
Dissatisfied
with this declaratory order, the appellants noted this appeal on the following
grounds:
1.
That the court a quo erred in coming to the conclusion that the late Thomas T.
Zawaira was not subject to customary law at the time of his death and so erred
for the following reasons:
(a) He had ten children born outside wedlock with different
women.
(b) The children were not born of ten mothers,
(c) He gave all the children his name which name they were
known by.
(d) The children were all known in the family and their
parentage was never an issue.
(e) His conduct went, therefore, beyond mere adultery and
was an indication of a clear connection with customary law principle and way of
life.
2.
The court a quo therefore erred under the circumstances in not coming to the
conclusion that the presumption in favour of the applicability of general law
had thus been rebutted and that the provisions of section 68 of the
Administration of Estates Act accordingly applied with the result that the
appellants could inherit from the estate of their father ab intestate.
3.
The court a quo further erred in failing to construe the applicable statutory
provisions in a way that represented a departure from the old common law
position and so erred in placing upon the provisions a construction which puts
them at variance with sections 18 and 23 of the Constitution of Zimbabwe and
renders them void.
From
the appellants' grounds of appeal, two issues stick out, that is;
(i)
Whether the estate of the late Thomas T. Zawaira was subject to customary law
or general law; and
(ii)
Secondly, whether on the basis of statutory interpretation or Constitutional
construction the general law outlawing intestate succession by out-of-wedlock
children can be impugned.
Customary or General Law?
The
first respondent takes the point that since the deceased was married in terms
of the Marriages Act [Chapter 5:11], the general law must apply. The backbone
of this argument stems from section 68G of the Administration of Estates Act
[Chapter 6:01] which reads as follows:
“68G Determination of whether customary law
applied to deceased person
(1) Section 3 of the Customary Law and Local Courts Act
[Chapter 7:05] shall apply in determining the question whether or not customary
law applied to a deceased person for the purposes of this Part:
Provided that it shall be presumed, unless the
contrary is shown, that -
(a) Customary law applied to a person who, at the date of
his death, was married in accordance with customary law; and
(b) The general law of Zimbabwe applied to a person who,
at the date of his death, was married in accordance with the Marriage Act
[Chapter 5:11] or the law of a foreign country, even if he was also married
to the same person under customary law.
(2)
Where there is a dispute among the beneficiaries of an estate as to whether or
not customary law applied to the deceased person for the purposes of this Part,
the question shall be referred to the Master, who shall determine it in the
speediest and least expensive manner consistent with real and substantial
justice.”…,.
Thus,
section 68G(1)(b) of the Administration of Estates Act [Chapter 6:01]
introduces a rebuttable presumption that the general law of Zimbabwe applies to
a person who, at the date of his death was married in accordance with the
Marriage Act [Chapter 5:11].
According
to the first respondent, therefore, it follows that the general law applies to
the estate of his deceased father who was party to a marriage under the
Marriage Act.
In terms of the general law, i.e. Roman Dutch Law, of
intestate succession, only children born in wedlock are entitled to inherit
intestate. Green v Fitsgerald 1914 AD 88. See MEYROWITZ, The Law and Practice of
Administration of Estates, 5th ed, Juta & Company…, who states
thus:
“No
blood relationship for purposes of succession is recognized between a man and
his illegitimate children who cannot, therefore, succeed to him ab intestato.”
See
also, W NCUBE, Family Law in Zimbabwe, Legal Resources Foundation…, where the
learned author states as follows:
“…,
illegitimate children cannot succeed ab intestato to their father or to their
father's relatives. Similarly, the father and his relatives cannot succeed ab
intestato to the illegitimate children.”
Against
this backdrop, the appellants argue that despite the deceased being party to a
marriage in terms of the Marriage Act, customary law applies to the deceased.
In
other words, the appellants seek to rebut the statutory presumption under section
68G(1)(b) of the Administration of Estates Act [Chapter 6:01]. Section 68G(1) of
the Administration of Estates Act [Chapter 6:01] makes reference to section 3
of the Customary Law and Local Courts Act [Chapter 7:05] which provides:
“3 Application of customary law
(1) Subject to this Act and any other enactment, unless the
justice of the case otherwise requires -
(a) Ccustomary law shall apply in any civil case where –
(i) The parties have expressly agreed that it should apply;
or
(ii) Regard being had to the nature of the case and the
surrounding circumstances, it appears that the parties have agreed it should
apply; or
(iii) Regard being had to the nature of the case and the
surrounding circumstances, it appears just and proper that it should apply;
(b) The general law
of Zimbabwe shall apply in all other cases.
(2) For the purposes of paragraph (a) of subsection (1) –
'surrounding circumstances', in relation to a case, shall,
without limiting the expression, include -
(a) The mode of life of the parties;
(b) The subject matter of the case;
(c) The understanding by the parties of the provisions of
customary law or the general law of Zimbabwe, as the case may be, which apply
to the case;
(d) The relative closeness of the case and the parties to
the customary law or the general law of Zimbabwe, as the case may be.”
The
import of this provision is clear. In determining whether customary law applies,
as argued by the appellants, regard must be had to the nature of the case and
the surrounding circumstances if it appears just and proper that it should
apply or if the parties are to be presumed to have agreed that it should apply.
Section 3(2) of the Customary Law and Local Courts Act [Chapter 7:05] provides
a non-exhaustive list of factors that help in determining whether customary law
is to apply to a party. The appellants aver that the fact that the deceased
sired ten children outside marriage is one such factor or surrounding
circumstance suggesting that customary law instead of the general law should
apply to the deceased estate. Further, the appellants argue that each child
born out of wedlock was given the deceased's name.
This,
according to the appellants, suggests that customary law applies to the
deceased.
Counsel for the appellants submitted that the
court a quo erred by placing excessive emphasis on the nature of the contracted
marriage rather than assessing the applicable law and made reference to the
following portions of the judgement:
“In
casu, it is common cause the deceased was married in terms of the Marriage Act…,.
No other marriage is alleged with any other woman…,. Apart from siring the
children, the deceased did not marry the women in question; it was not shown
that he had expressly agreed that customary law should apply despite his
marriage in terms of the Marriages Act. His mode of life was not shown to have
been such as to infer that he was subject to customary law.”…,.
In
my view, the submission and criticism, with respect, is justified.
Too
much emphasis is placed on the existence of the civil marriage and the absence
of customary marriages, which, of course, would have exposed the deceased to
the crime of bigamy. The conclusion is then quickly drawn that in the light of
the civil marriage and no other marriage, the applicable law should be general
law. Furthermore, while it was the responsibility of the appellants to place
before the court evidence of the surrounding circumstances which, when
considered together with the nature of the case, would justify a departure from
the presumption, the court below seems to have weighed whatever evidence there
was in terms of whether it supported an express or implied agreement that
customary law should apply. The court did not examine whether the nature of the
case and the surrounding circumstances justified the application of customary
law.
In
other words, the court a quo failed to consider the provisions of section
3(1)(a)(iii) of the Customary Law and Local Courts Act [Chapter 7:05], which
states:
“3 Application of
customary law
(1) Subject to this Act and any other enactment, unless the
justice of the case otherwise requires –
(a) Customary law shall apply in any civil case where –
(i)…,.;
(ii)…,.,; or
(iii) Regard being had to the nature of the case
and the surrounding circumstances, it appears just and proper that it should
apply;”
This
omission was a material misdirection justifying interference with the finding
of the court below. It is also a matter which this Court itself is in as good a
position to address as the court a quo and therefore need not remit the issue
for such consideration.
As
submitted by the appellants' counsel, by siring ten children out of wedlock,
the deceased evinced an intention to procreate more than could be facilitated by
the single wedded wife and the contracted marriage was not a true reflection of
the system of law he would have intended to apply to his estate. However, this
submission was, in my view, wrongly dismissed by the court a quo thus:
“The respondents' major point in this bid was the fact that
the deceased sired ten out of wedlock children with different women. They
contended that that showed that he was subject to customary law. The
respondents could not allude to any other factors. One may thus ask is the factor
of siring children out of wedlock with various women peculiar to people subject
to customary law?
The answer, in my view, is no…,.
In my view, the fact of having out of wedlock children, on
its own, is inadequate to conclude that the deceased was subject to customary
law at the time of his death.”…,.
With
respect, the court a quo fell into the error of viewing, in isolation, the act
of siring ten out-of-wedlock children, without taking into account the totality
of the surrounding circumstances.
Counsel
for the respondents compounds this error when making the point that what the
deceased had engaged in with the other women was adultery and that even
“repeated adultery with the same person(s) remains adultery. Adultery is not
peculiar to Zimbabwean custom. Even in Biblical times adultery was existent.”
Counsel
for the respondents then concludes that the appellant's submissions, if
followed, would lead to many imponderables such as how far a party should have
strayed from the civil marriage bed for such conduct to be adjudged as
identification with customary law – a single instance or a dozen instances?
Resulting in one, two or a dozen children? Instances of adultery are so
numerous in the bourgeois marriage set-up that even the crime of adultery had
to be abandoned through 'desuetude', that is, frequent non-prosecution! The
criminal justice system was so overwhelmed it simply had to give up. KARL MARX and FREDERICK ENGELS, in The
Communist Manifesto, observed in this regard, thus:
“'Our
bourgeois, not content with having the wives and daughters of their
proletarians at their disposal, not to speak of common prostitutes, take the
greatest pleasure in seducing each other's wives.'p50 KARL MARX and and FREDERICK ENGELS, Selected
Works, Progress Publishers, Moscow, 1970.”
However,
it is a misdirection to view, in isolation, aspects of the case such as the
siring of many out-of-wedlock children or to mischaracterize the association
with other women as 'adultery or repeated adultery' simpliciter.
When
the case is looked at holistically, the out-of-wedlock children were children
whom the deceased, during his lifetime, looked upon as being on par with his
in-wedlock children; entitled equally to the use of his surname,
acknowledgement by the family, and support. Had the deceased devolved his
property through a will, he would have been entitled, at law, to treat all his
children equally. The justice of this case supports the conclusion that
customary law should apply as amply demonstrated by the nature of the case and
the surrounding circumstances when viewed holistically.
What
really is the nature of this case?
It
is not about the protection of the institution of civil marriage or the
preservation and devolution of marital property on succession. There are civil
remedies to protect the marriage available to a partner faced with a bed-hopping
spouse, such as suing for adultery damages and related remedies.
The
true nature of this case is about protection of children.
Of
the ten out of wedlock children, at the time of instituting proceedings, three
were minors and one suffers from a mental disability and the rest are majors.
All the in wedlock children are adults.
Now,
since under both customary and general law, the father of an out of wedlock
child is liable to maintain such child and the deceased was indeed supporting
such children during his lifetime, the justice of this case cries out for such
support to be maintained and that customary law should be deemed to apply to
the distribution of the deceased's estate among the children.
The
unfair treatment of out of wedlock children under general law cannot be
gainsaid.
Once
upon a time, such law accepted the notion of children born out of wedlock being
referred to as 'bastards' or 'misbegotten'. The stigma associated with the name
'bastard' moved a character in William Shakespeare's King Lear to observe thus:
“Edmund…,. Why
bastard? Wherefore base?
When my dimensions are as well compact,
My mind as generous, and my shape as true,
As honest madam's issue? Why brand they us
With base? With baseness? Bastardy? Base,
Base?
Who, in the lusty stealth of nature, take
More composition and fierce quality
Than doth, within a dull, stale, tired bed,
Go to the creating a whole tribe of fops,
Got 'tween asleep and wake? Well, then,
Legitimate Edgar, I must have your land:
Our father's love is to the bastard Edmund
As to the legitimate: fine word, - legitimate!
Well, my legitimate, if this letter speed,
And my invention thrive, Edmund the base
Shall top the legitimate. I grow; I prosper:
Now, gods, stand up for bastards!” (Act I Scene II)
With
the passage of time, the term 'bastard' was replaced with the word 'illegitimate'
child. This categorisation of children born of parents not married to each
other into a bracket of the so-called 'illegitimate children' still had the
sting of stigma that was sought to be gotten rid of. The introduction of the
word 'children born out of wedlock' is believed, by the law giver, to have
taken away the stigma associated with the status of children born out of
unmarried parents. In the South African jurisdiction, the blame has been
shifted away from the children to the parents themselves as evident from the
name, 'children born of unmarried parents.'
This
account of the journey of children born out of wedlock exhibits the dynamic of
ideas and the society they emanate from. Societies, by their very nature,
evolve with time. Laws that govern a particular society must also evolve to
meet the needs of that particular dynamic society….,.
In
the case of ZIMNAT Insurance Company (Pvt)
Ltd v Chawanda 1990 (2) ZLR 145 (S) it was held that having regard to the
notion of justice and the interests of the litigants balanced against the
community as a whole it was desirable to extend the dependant's action for
damages for loss of support to a customary law wife in respect of whom the duty
of support arises by virtue of legislation, and the following comment was made:
“What
is offensive to one's sense of justice is that upon the wrongful killing of a
breadwinner the position of a widow, who had married under customary law,
should differ adversely from that of another, who had married according to
civil rites, albeit both suffer the same kind of loss. As our law accepts
customary unions, it should endeavour to secure equality to the parties thereto
and discard the intolerable affectation of superior virtue (to borrow a phrase)
inherited from the colonial past. To continue to exhibit a vestige of
condescension and conservatism towards customary law unions ill-befits, and is
repugnant to, the current and unyielding movement by the State to remove the
legal disabilities suffered by African women.”…,.
In
the above quotation, if reference to a 'widow married under customary law' were,
mutatis mutandis, substituted with 'child born out of wedlock' these sentiments
would apply with even greater force to the plight of out of wedlock children
who would have lost a breadwinner in the form of their father when excluded
from a share of his deceased estate.
Thus,
viewed holistically and in the light of the march of history and social
sentiment, the nature of this case demands that it would be just and proper
that customary law should apply.
Gone
are the days when such odious words as those of Emperor Justinian held sway, that:
“But
those who are born of a union which is entirely odious to us, and therefore
prohibited, shall not be called natural children and no indulgence whatever
shall be extended to them. But this fact shall be punishment for the fathers
that they know that children who are the issue of their sinful passion will
inherit nothing.”
This
is clearly so, because focus has inexorably moved away from punishment of the
errant fathers to protection of all the children.
The
“surrounding circumstances” which must be considered together with the nature
of the case discussed above in order to decide whether it would be “just and
proper” for customary law to apply include;
(i)
The mode of life of the parties;
(ii)
The subject matter of the case; and
(iii)
The understanding and relative closeness of the parties to customary or general
law.
The
mode of life of the parties includes the lifestyle, habits, cultural leanings
and social norms. The conduct of the deceased which has already been set out
above unequivocally places him in the category of an adherent of, and believer
in, norms, values and tenets of the African traditional society.
The
subject matter of the case, i.e., dispute over succession, also clearly lends
itself for resolution in terms of customary law and would be different from a
dispute pertaining to a negotiable instrument, for example.
Therefore,
the preponderance of the surrounding circumstances, including the understanding
and relative closeness of the parties to either system of law, all point to the
applicability of customary law being just and proper in the circumstances.
Once
it is found, as has been done here, that customary law is applicable, the
provisions of the Administration of Estates Act [Chapter 6:01], particularly section
68, automatically entitle all children, born in or out of wedlock, to be equal
beneficiaries of the deceased person's estate.
Constitutional Perspective
The
Constitutional arguments are being raised for the first time on appeal as being
matters of law which the court a quo should have taken into account.
The
ground of appeal in this regard is that the court below should have placed a 'purposive'
construction on the relevant statutes discussed above and that such
interpretation should have led to a departure from the common or general law
position in order to afford the appellants protection of the law.
This
ground of appeal, apart from being raised too late in the litigation, is so
badly formulated that it is almost impossible to appreciate what is being challenged.
Is
the allegation that the court a quo adopted too narrow an approach in
interpreting the relevant legislation? If so, how would a purposive
interpretation have 'progressively' aligned the legislation to the Constitution
when regard is given to the fact that the section 18 protection of law
stipulations in the former Constitution were made subject to the provisions of
the Constitution and that section 23(2)(a) specifically excluded from the
general anti-discrimination provision the following matters: “adoption,
marriage, divorce, burial, devolution of property on death or other matters of
personal law”?
It
was properly accepted by both counsel that the Constitution of Zimbabwe
Amendment (No.20) Act, 2013 cannot be authority or the basis for disposing of
this matter.
The
deceased died in 2003, close to a decade before the inception of Constitution
of Zimbabwe Amendment (No. 20) Act, 2013. The facts of this case arose before
the promulgation of the current supreme law. It being trite that the Constitution
does not apply retrospectively, any reference to the 2013 Constitution as
authority for this case would be misguided and incorrect. This matter is to be
dealt with in terms of the laws that existed at the time when the dispute
arose.
Because
of the poor formulation of the purported Constitutional challenge, and given
the conclusion already reached on the applicability of customary law to this
case, it is unnecessary to grapple with the Constitutional issues raised, such
as they are.
Happily,
though, the current Constitution has now addressed the issue of out of wedlock
children through section 56(3), which, in very clear terms, abolishes
discrimination on the basis of, among other things, custom and whether one is
born in or out of wedlock.
Disposition
Accordingly,
it is ordered as follows:
1. The appeal succeeds.
2. The judgement of the court a quo is set aside and
substituted with the following:
“The application be and is hereby dismissed.”
