MATHONSI
J: The
late Korosi Matiyasi Soraidema (“the deceased”) was a businessman of repute who
owned a shopping complex in Njube Township, Bulawayo, one of the pioneering
suburbs in town, among other valuables.
He may have passed away on 15 September 2003 with his estate registered
as DRBY 1435/03 and perhaps gone to meet his maker, but those that claim to
have been closest to him during his lifetime have never allowed his soul to
rest in peace. Brickbats have flown all
over the place for over 15 years as a titanic battle over his estate rages
on. The main antagonists pitted against
each other have been Winnie Mpofu (“Winnie”), the plaintiff herein and Floppa
Leah Mlavu (“Floppa”) the 1st defendant herein. Over the years there has been one litigation
after the other over the control of the estate with alleged relatives of the
deceased taking turns to disown one or other of the 2 while supporting the
other.
In
the present matter Winnie instituted action against the defendants seeking a
declaratur that Floppa is not a spouse of the deceased in terms of customary
law or the Administration of Estates Act [Chapter 6:01], that she (Winnie) is
the only surviving daughter of the deceased and as such the sole beneficiary of
the estate. Alternatively, in the event
that the court finds Floppa to be a spouse, that she is only entitled to
inherit Centenary Farm and all the property therein while she, Winnie, is
entitled to inherit the remainder of the estate. As a further alternative, Winnie would like
both of them to be declared joint heiresses to the estate entitled to inherit
the whole estate in equal shares.
Winnie
averred in her declaration that she is a child born of the marriage between the
deceased and the late Ettah Sibanda (“Ettah”), the two having been married to
each other at Bulawayo on 18 June 1948 which marriage subsisted until the death
of the deceased on 15 September 2003.
Although the deceased is alleged to have contracted a customary marriage
with Floppa, the latter has failed to prove such marriage only succeeding in
producing an unauthenticated photo-copy of the marriage certificate.
Winnie
further averred that the deceased and Floppa had separated in 1975 until the
death of the deceased. During that
period of 28 years separation, Floppa had gone on to contract another marriage
in terms of the Marriage Act [Chapter 5:11] with one Ronnie Brown Masiso on 7
February 1986 as a “spinster”. They
later divorced but Floppa and the deceased never revived their marriage.
The
action is contested by Floppa who denied that Winnie is the child of the
deceased or that Ettah was ever married to the deceased. She averred that her marriage to the deceased
subsisted until his death and although she once married Masiso by civil rites,
that marriage was void and as such it had no effect on the validity of her
marriage to the deceased. She denied
that Winnie was entitled to inherit anything from the deceased's estate.
The
issues for trial as contained in the joint pre-trial conference minute drawn by
the parties following a formal pre-trial conference held before a judge are:
1.
Whether Winnie is a surviving
child of the deceased.
2.
Whether Floppa is a surviving
spouse of the deceased.
3.
What assets constitute the
estate of the deceased?
At the trial, 4
witnesses, including Winnie, testified on behalf of the plaintiff while only
Floppa gave evidence on her behalf as the 1st defendant.
It
was Winnie's evidence that her mother Ettah got married to the deceased on 18
June 1948 in terms of the then Native Marriages Act. She produced a certified copy of the marriage
certificate issued by the Customary Law Court on 3 June 2010 showing that Ettah
was the deceased's second wife. That
marriage was blessed with 2 children namely Norman and herself. The 2 commenced living in separation when
Ettah became ill and returned to her parents' rural home in Lupane. When she was born she lived there with her
mother. Her father had previously married
another woman with whom he had 2 children both of whom are now deceased. Even her brother Norman is now deceased.
Winnie
testified that it is her mother who obtained a birth certificate for her and in
so doing had used the surname Mpofu, his father's totem. She said that as far as she was aware in the
Shona tradition they sometimes use totems and the deceased was always known as
Mpofu even though his records reflected the surname Soraidema. She had grown up at her mother's rural home
in Lupane where she got her first birth certificate. Although she was born in 1952, as was the
norm during the colonial era, her date of birth was brought forward to 1956
because then the administration would not allow an older person to repeat a
grade at school.
She
lived in Lupane until she was about 20 years old when she came to town to try
and hook up with the deceased who initially did not readily accept her and even
refused to change her birth certificate to reflect the surname he was
using. This is because she had been born
during the period of separation. The
cold reception did not last long as the deceased soon accepted her, contributed
to her maintenance and even paid her fees when she was attending nursing school
in Masvingo. Ironically it is Floppa,
then employed by the deceased as a shop keeper, who was sending her groceries
in Masvingo obviously on the instructions of the deceased. The Registrar of Births and Death
subsequently issued her with an amended birth certificate showing her surname
as Soraidema.
She
knew Floppa as an employee and treated her as a sister. She does not know when Floppa and the
deceased upgraded their relationship to a sexual one and if ever they got
married. She queried the alleged
marriage because even the marriage certificate Floppa has produced is hardly
legible and records her as a first wife when the deceased had already married
twice before Floppa came. More
importantly the clerk of court, who is the custodian of all such marriages, has
said there is no record of it. She
produced a letter dated 11 December 2009 written by the clerk of Customary Law
Court to Cheda and Partners, then representing her, which reads in relevant
part:
“Re: Confirmation of Marriage
The above matter refers. We
have made a check on our marriage records and we could not find the said
marriage record which is said to have been contracted in 1974 between Floppa
Leah Mlavu and Korosi Matiasi Soraidema.”
As
Floppa had produced a copy of a certified copy of the marriage certificate, the
witness' investigations took her to the office whose certification stamp
appears on that copy, but was told that the “lawyer” could not remember what
had transpired. Because of that and the
fact that there was no one who had witnessed the marriage, she formulated the
opinion that Floppa was never married to the deceased.
She
said that if Floppa had any relationship with the deceased such terminated as
far back as 1975 when she left and never returned until the deceased's
death. In fact Floppa later married one
Ronnie Brown Masiso at Bulawayo on 7 February 1986 in terms of the Marriage Act
[Chapter 5:11]. When she applied for a
marriage licence she did so as a spinster.
Copies of the application for a marriage licence made and signed by
Floppa on 7 February 1986 under oath in which she vowed that not only was she a
spinster but also that “there (was) no lawful impediment to (their) marriage”
was produced together with the marriage licence and marriage certificate.
While
still on that marriage I might as well mention that according to Floppa she
indeed got married to Masiso as alleged but that marriage was fraudulent and a
fake. Apart from the fact that she could
not lawfully enter into a valid marriage by reason that she was already married
to the deceased, she had assisted her nephew obtain a marriage certificate
which he needed in order to apply for a house with the municipality. She produced a divorce order as proof that
the marriage in question was later nullified.
As I shall demonstrate later in this judgment Floppa's explanation of
the marriage with Masiso is far from satisfactory and completely unreliable.
Winnie
insisted that as a daughter of the deceased she is entitled in law to inherit
from his estate but the same cannot be said about Floppa who has not proved
that she is a spouse of the deceased.
Winnie called 3 relatives of the deceased to vouch for her namely
Ndatanda Echo Nevana, Martin Soraidema and Vorster Soraidema. The thread running through their evidence is
that Winnie was born of the second marriage between the deceased and
Ettah. The latter went on to obtain a
birth certificate for Winnie to enable her to attend school using the surname
Mpofu which was the surname also used by the deceased. It was not uncommon then for Shona speaking
people coming to settle in Matabeleland to adopt such surnames for the benefit
of the people of Matabeleland region who always insisted on surnames not used
by the former, who are called by their totems.
Nevana,
who says he was so close to the deceased that it is the deceased who sent him
to school and paid his school fees from standard 1 to standard six and he is
the one who interviewed Floppa for a job as a shop keeper, was adamant that the
deceased later had a relationship with Floppa.
He however never witnessed any marriage between them. In fact according to Nevana Floppa left the
deceased and went on to marry someone else.
He was shown a letter written to the deceased by the husband warning the
deceased to stay away from Floppa as she was then lawfully married.
Winnie
and her witnesses gave their evidence very well. The only blemish was in the evidence of
Martin Soraidema who took a tangent on the use of the surname Mpofu. He said Winnie got it because it was her
mother's totem and not the deceased's.
What was clear though was that apart from Nevana, all the members of the
Soraidema clan have always been based in Magunje in Mashonaland and were not
part of the life of the deceased in Bulawayo.
I was however very impressed by the evidence of Nevana who was the
closest witness to the deceased. The
deceased confided in him. I have no
hesitation in relying on his evidence.
It
is surprising that Floppa could not secure evidence from any of the deceased's
relatives to support her claim that Winnie is not the daughter of the deceased
or that she was lawfully married to the deceased. As hers was a customary marriage at least she
should have her own relatives who witnessed it to come and say it did take
place. She produced none. She forlornly stood on her own and as a single
witness she had the onerous task of persuading the court that it is her version
which should be believed. Her
credibility in that regard therefore became very critical in tilting the scales
in her favour.
Her
version is that she was married to the deceased in 1974 at a time when he was
not married to anyone. She did not know
Ettah and only met her after the deceased's death at the police station. She does not know if there is any
relationship between the deceased and Winnie and does not accept that she is
the deceased's daughter because her surname was Mpofu which is not the
deceased's surname. The deceased's
totems are Sinyoro, Masikamoto, Mawongera.
Mpofu does not feature there. She
only knew 4 children of the deceased, that is Laisa, Daisy, Gift and
Norman. The existence of Winnie was
never brought to her attention.
On
why she could not produce her original or properly certified copy of her
marriage certificate, Floppa said she used to have the original which she had
photocopied and then had it certified by the Master of the High Court, which
copy was later photocopied and produced as an exhibit in her bundle of
documents. However, the original was
taken away from her by the police when she was prosecuted for forgery where it
was alleged she had forged a marriage certificate. She produced an extract of the criminal
record book CRB 593/05, CR B/C 827/11/04 the outcome of which was an
acquittal. Floppa said the police never
gave the certificate back to her.
The
explanation on the non-existence of the original marriage certificate or a
certified copy is far from satisfactory.
If the police took the original from her upon her arrest and never gave
it back as she alleged, that must have been done in November 2004 as shown by
the criminal record number (827/11/04).
It therefore cannot be correct that she had taken the certificate for
certification by the Master on 25 March 2008 when the Assistant Master
allegedly appended his stamp. Either
that or the Assistant Master certified a photocopy without seeing the original
which confirms the evidence of Winnie that the “lawyer” said he could not
remember anything about certification of the marriage certificate.
I
also find it strange that Floppa, with the assistance of her legal
practitioner, could not secure the release of her marriage certificate from the
police or from the criminal record at the Magistrates' Court. One can only draw adverse inferences from
that scenario, especially when the copy that she produced records that hers was
a first marriage for the deceased when we have confirmation from the custodian
of customary marriages that the deceased had been married twice before he met
Floppa and that Ettah's marriage subsisted until the deceased's death. In addition we have the vexing inability of
Floppa to bring any relative or friend from both families who witnessed her
marriage to the deceased.
Regarding
her marriage to Masiso, Floppa stated that it was fraudulent and designed only
to help him, as a nephew to apply for a house.
The moment he got one, they quickly nullified it. Meanwhile she continued being validly married
to the deceased. It is not easy to
dismiss that marriage out of hand just like that. This is because in order for her to obtain a
marriage licence, Floppa made an oath that she was a spinster and there was no
impediment to the marriage with Masiso.
If her present oath is to be believed, it would mean that she lied under
oath on 7 February 1986 when she made the deposition in the marriage licence
application. On the other hand, if we
believe her oath in the application for a marriage licence, it must therefore
follow that she lied in court. Whichever
way, her 2 sworn statements are mutually destructive. It is trite that where a witness is shown to
have lied under oath, then everything that the witness says should be
rejected. The logic for that is that a
court of law may never know when the truth is told by such a witness and as
such it is safe to reject everything the witness says: Trinity Engineering (Pvt) Ltd v Karimazondo
& Ors HH-672-15.
The
issue of Floppa's marriage to Masiso however does not end there. I have obtained the record, HC 724/86 which I
am entitled to take judicial notice of as it is a record of this court. The papers filed therein show that Masiso filed
a divorce summons out of this court on 21 October 1986 through the medium of
his legal practitioners Coghlan & Welsh.
In the declaration Masiso averred that his marriage to Floppa had
irretrievably broken down because;
“(a) Defendant
(Floppa) has been dishonest with plaintiff about the number of children she has
had from previous associations and has further refused to disclose the full
parental history of any of the aforesaid children.
(b) Defendant
is a spend thrift and cannot handle her financial affairs properly and moreover
her numerous creditors have not been discriminative in the execution of
property from the matrimonial home, thereby causing plaintiff great
embarrassment and anxiety.
(c) Defendant
has deliberately provoked numerous arguments with plaintiff.
(d) Defendant
has appeared in court on serious criminal charges thereby causing plaintiff
great embarrassment and anxiety.
(e) Defendant
has frequently subjected plaintiff to outbursts of violent temper and used abusive
language to and concerning him.”
Quite
detailed and pointed reasons for seeking a divorce and an indictment indeed on
the personality of Floppa. If those
ground are juxtaposed against Floppa's story that this was a fake marriage
meant to assist Masiso obtain a house, it is extremely difficult to accept that
story as true. For one thing it is
unlikely that as late as 1986, the Municipality of Bulawayo still required
applicants for low cost housing to produce marriage certificates for a housing
form. In addition, Masiso is not shown
as a person who required low cost housing at all because the couple lived at
number 42 Greystoke Way Morningside, Bulawayo, an up market residential area by
any standard. In any event Masiso owned
that house because he averred in paragraph 8 of his declaration that:
“Plaintiff is the sole beneficial owner of house number 42 Greystoke
Way, Morningside, Bulawayo, which is presently occupied by the defendant and
which defendant refuses, despite demand, to vacate.”
What
is clear therefore is that not only did Masiso own a house in Morningside but
such house was occupied by Floppa who was refusing to vacate. That is certainly not a person who required
the assistance of his aunt to enter into a paper marriage to obtain a house.
As
if that was not enough, when Floppa received the summons, she engaged the
services of a firm of legal practitioners, Ben Baron and Partners of Bulawayo
who caused an appearance to defend to be entered on her behalf on 23 October
1986. It would appear that what followed
were negotiations of a settlement between the parties, regard being had to the
affidavit deposed to by Floppa's legal representative, Dipak Naik on 8 February
1987. It was only after the successful
conclusion of those negotiations, one would presume, that the divorce was
granted on 27 February 1987 on the grounds of “irretrievable breakdown” of
marriage.
If
one relates to that court record it is clear that what it achieves is to tear
Floppa's testimony into smithereens. If
the marriage was fake, it would have been nullified instead of being dissolved
on the grounds of irretrievable breakdown.
Even if one were to assume in Floppa's favour, and generously so, that
the 2 of them decided to continue with the charade and sought a divorce instead
of a nullity, human experience suggests that they would have given cursory
grounds of breakdown instead of the accusatorial and pointed ones which were
relied upon.
I
therefore have no hesitation in concluding that indeed Floppa was married to
Masiso which marriage was dissolved as shown in the record. Everything points to a very acrimonious
divorce as would not happen in the situation she sought to create in her
evidence. The question therefore is
where does that leave us? I have already
said that Floppa failed to prove the existence of a valid customary law union
between herself and the deceased. She
did not even enlighten the court as to where and when it may have occurred and
failed to produce single witness who witnessed it.
The
marriage certificate that she produced was an uncertified photo-copy which was
disowned by the clerk of the Customary Law Court, the custodian of records of
such marriages. The explanation that she
gave for her failure to prove the customary law marriage was a dog's
breakfast. I agree with Mr Ndlovu, who appeared for Winnie, that
Floppa has a propensity to misrepresent in an alarming way which is a trait
that she has carried for a long time. In
1986, Masiso was accusing her of being “dishonest” even about the number of
children she had and of appearing in the courts “on serious criminal
charges”. All this is contained in a
court record whose contents Floppa was aware of and its contents were put to
her under cross-examination thereby presenting her with an opportunity to
explain her side of the story. She chose
to down play it and dismissed it as a non-event.
In
light of the available evidence I have no choice but to reject the evidence of
Floppa that she was married to the deceased.
He conduct of marrying Masiso does not point to a person who was validly
married to someone else, a businessman at that.
Mr
Dube for the defendant did not say
anything in his closing submissions about the existence or validity of Floppa's
marriage viz-a-viz the evidence. He was content simply to continue challenging
the paternity of Winnie forgetting that Floppa also bore the onus of proving
the existence of her marriage.
In
terms of s 68 (3) of the Administration of Estates Act [Chapter 6:01] a
marriage contracted in terms of customary law is recognized as a valid marriage
for purposes of inheritance. If Floppa
was married to the deceased, even without a marriage certificate, she would be
a spouse for purposes of inheritance.
She has not discharged that onus.
Section
68 (4) is an interesting provision. It
reads:
“A marriage contracted according to the Marriage Act [Chapter 5:11]
or the law of a foreign country under which persons are not permitted to have
more than one spouse, shall be regarded as a valid marriage for the purposes of
this Part even if, either of the parties was married to someone else in
accordance with customary law, whether or not that customary law marriage was
solemnized in terms of the Customary Marriages Act [Chapter 5:07].
Provided that, for the purposes of this Part, the first marriage
shall be regarded as a customary law marriage.”
Can
that section be interpreted grammatically?
The Supreme Court said in S v Nottingham Estates (Pvt) Ltd 1995 (1)
ZLR 253 (S) 256 E:
“The primary rule of interpretation is, of course, to endeavour to
ascertain the intention of the law maker from an examination of the provision
under consideration placed in proper context.
A court will commence its inquiry by giving the word its grammatical
signification, unless it is clear that the literal sense, when so applied,
defeats the legislative intendment. In
such event a deviation from the ordinary meaning is justified, provided always
that the word is sufficiently flexible to admit of another meaning by which
such intention can be better effected.”
If
the section is given its grammatical signification it means that a party who is
married in terms of customary law, whether in the form of a customary union or
a marriage solemnized in terms of Chapter 5:07, is entitled to contract a
marriage in terms of Chapter 5:11 and for purposes of Part IIIA of the
Administration of Estates Act [Chapter 6:01] that marriage will be valid. The section used the phrase “either
party” meaning that a woman married in
terms of customary law can contract a marriage in terms of Chapter 5:11 with
another man and such marriage shall be regarded as valid for inheritance purposes. She cannot of course contract a marriage in
terms of Chapter 5:11 if she is married in terms of Chapter 5:07. However a customary union is not a marriage
but is recognized for limited reasons, such as inheritance and
maintenance. It is only such a
construction of s 68(4) which does not lead to an absurdity.
In our law, a
woman cannot marry 2 different men. What
that provision means therefore is that when she elects to contract a marriage
with another man in terms of Chapter 5:11, the latter marriage automatically
terminates the preceding customary marriage.
That is where Floppa stands. Even
if she was married to the deceased in terms of customary law such marriage
terminated the moment she took marriage vows with Masiso by civil rites on 7
February 1986. So even if such marriage was
dissolved later, the act of dissolution could not have the effect of reviving
what had already been terminated.
It is
regrettable that there was absolutely no benefit to be derived from submissions
made by both counsel in this matter regarding the pertinent legal issues
arising from this dispute. Both closing
submissions were spectacular by their lack of legal argument. Perhaps the litigants, self-acting, would
have done better. I express that
indignation because quite crucial legal issues arise from the dispute which needed
to be exhaustively dealt with. For
instance, the legal effect of Floppa's disappearance for almost 3 decades
before resurfacing after the deceased's death to lay a claim to his estate was
not canvassed. So is the issue relating to the status of Ettah Sibanda who only
died after the death of the deceased and had remained legally married to him
until his death. These are issues with
legal implications on the rights of the present parties.
In Ndlovu v Ndlovu & Ors 2011 (1) ZLR 81 (H) 88E – F I had occasion to
express the view that:
“The time has come to declare, in no uncertain terms, that parties
cannot invest in a paper marriage only to surface after the death of the other
person they had long abandoned to commence a new life. It is an unacceptable and extremely indecent
habit which should be discouraged. If
the marriage has failed, it should be terminated to release the parties to
start afresh.”
Floppa's
situation is worse than that because not only did she abandon the deceased for
decades to commence a new life, she also contracted a civil marriage. She then re-surfaced after the deceased's
death even without the dignity of attending his funeral to lay a claim to his
estate. Alice in Wonderland.
On
the issue of whether Floppa is a spouse of the deceased for inheritance
purposes, I have no hesitation in answering that question in the negative.
On
the issue of whether Winnie is the daughter of the deceased, credible evidence
has been led to prove her parentage.
There is therefore no basis whatsoever for holding otherwise. In fact, the only factor which Floppa was
clinging on to, was that she used the surname Mpofu instead of Soraidema. That argument is as opportunistic as it ridiculous. Quite often children are born of biological
parents and use other names than those of their fathers. The use of surnames on its own cannot
possibly disinherit a person.
There
is however another factor which was not considered by counsel. It is that at the time the deceased died in
2003, Ettah was still alive and was still legally married to the deceased. In fact that is common cause. Even according to the evidence of Floppa at
the time the parties had started fighting over the estate, she met Ettah at the
police station. According to the
evidence of Winnie, Ettah had resumed living with the deceased at the time of
his death. She even deposed to an
affidavit explaining the parentage of Winnie and the late Norman on 18 May 2004
which is part of the record in HC 2445/12.
The
fact that Ettah survived the deceased triggered the application of s3A of the
Deceased Estates Succession Act [Chapter 6:02] regard being had to the fact
that the intestacy of the deceased occurred on 15 September 2003 when he died
without a will. Section 3A provides:
“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 person's 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.”
So, even if
Floppa had also been a spouse, Ettah would have been entitled to inherit. While
it is true that according to common law, estates do not inherit intestate; Swift v Pichanick NO 1981 ZLR 622 (S), Ettah was a surviving spouse and the
fact that she may not have been appointed heiress at the time of her death does
not make a difference, she was still entitled to inherit; Chaumba v Chaumba 2002
(2) ZLR 51 (S) 53 F; Nyathi & Anor
v Ncube & Ors HB-123-11.
In
any event, as the only surviving spouse Ettah would still inherit in terms of
the Administration of Estates Act [Chapter 6:01].
Happily,
it is common cause that Winnie is again the only surviving progeny of Ettah and
as such would still inherit from the latter's estate. That therefore resolves the conundrum posed
by the failure to recognize the rights of Ettah in the equation. I conclude therefore that Winnie as the only
surviving progeny of both Ettah and the deceased inherits the entire
estate. No evidence was led on the third
issue which I therefore leave for the executor.
In
the result it is ordered and declared that;
1.
The 1st defendant,
Floppa Leah Mlavu is not a spouse of the late Korosi Matiyasi Soraidema under
the law and is therefore not entitled to inherit from the estate registered as
DRBY 1435/2003.
2.
The plaintiff is the only
surviving daughter of the late Korosi Matiyasi Soraidema and Ettah Soraidema
(nee Sibanda) and as such is the sole beneficiary of the estate DRBY 1435/2003.
3.
The 1st defendant shall bear
the costs of suit on an ordinary scale.
Mlweli
Ndlovu & Associates, plaintiff's legal
practitioners
Legal Resources Foundation, 1st defendant's legal practitioners
