In this application, the applicant is the surviving spouse
of the late Samson Maseko who died on 13 August 2013.
The first to the fourth respondents are sisters of the late
Samson Maseko; they, together with the latter, being siblings born of the late
Ellen Sikwayara who died intestate on 20 March 1996.
In essence, the applicant seeks the re-opening of the
estate of her late mother- in-law which was registered 18 years after her death
as DRBY 692/14 and administered to her exclusion by the respondents. The main
asset of that estate is a house, being Stand 44539 also known as K27 Mzilikazi,
Bulawayo (the house), which, in terms of the first and final distribution
account drawn by the first respondent, as executrix, and confirmed by the sixth
respondent on 25 February 2015, was parceled out to the four surviving
daughters of the deceased.
The applicant has brought this application arguing that
after the death of Ellen Sikwayara, herself and her late husband, had developed
the house at an expense because he was also entitled to inherit the estate of
his late mother. Her late husband stood at par with the other surviving
children of their mother. The first respondent has now proceeded to transfer
the house into her own name after registering the estate behind her back and
then excluding her and her children from benefiting from the estate. In fact,
as the only son, her late husband was regarded as the heir.
All this happened at a time when the applicant had
approached this court in HC2012/14 seeking an order compelling the registration
of the late Ellen Sikwayara's estate.While opposing the application on flimsy
grounds, the first respondent had gone behind her back to register the estate
and to exclude her and her children completely. In the applicant's view, the
first respondent acted fraudulently. Meanwhile, the fifth respondent had
suggested, in his report, submitted in terms of Rule 248, that the parties
should approach his office for registration of the estate without the need of a
court order. It was on that understanding that HC2012/14 was removed from the
roll on 9 June 2015 and the fifth respondent registered the estate as DRB344/15
unaware that the respondents had done so in the customary court.
The applicant would like the winding up of the estate under
DRBY692/14, which dis-inherited her husband's estate, to be nullified and an
independent executor appointed.
The application is opposed by the first respondent who
denies any fraudulent conduct. She says the house did not belong to her late
brother but her late mother. She confirms presenting the distribution account
which excluded Samson Maseko's estate as he was dead at the time. Herself and
her three sisters are the only surviving children of their mother and therefore
are the only rightful heiresses to the estate. It is for that reason that the
house was transferred into their four names as set out in the distribution
account.
The main issue to be decided is whether the late Stanley Maseko
inherited from his late mother's estate. If he did, then surely his estate, or
is it the beneficiaries of his estate, are entitled to inherit from the estate
of his late mother. If he did not so inherit, then the first respondent would
be correct in distributing their mother's estate only to the four surviving
siblings.
It is true that in Zimbabwe, statute has made a lot of
inroads into the common law of intestate succession. We now talk of the provisions of section 3A
of the Deceased Estates Succession Act [Chapter 6:02] which allows the
surviving spouse to inherit from his or her deceased spouse as well as section 3
of the Administration of Estates Act [Chapter 6:01], which replaced section 68(1)
of that Act, the terms of which provided that if any African who had contracted
a marriage according to African law or custom or, being unmarried, was the
offspring of parents married according to that, died intestate, his estate was
to be administered and distributed according to the customs and usages of the
people to which he belonged.
What it means is that prior to 1 November 1997, when section
3 of the Administration of Estates Amendment Act 6 of 1997 came into effect,
whether under Shona or Ndebele customary law, the heir to a deceased estate was
the eldest surviving son of the deceased. See Chaumba v Chaumba 2002 (2) ZLR 51
(S)…,.; Magaya v Magaya 1999 (1) ZLR 100 (S).
It is a truism that in our law the intestate heirs are, in
all cases, to be ascertained at the date when the intestacy occurs. See Swift v
Pichanick N.O. 1981 ZLR 622 (S); Nyathi and Another v Ncube and Others HB123-11.
In the present matter, the intestacy of Ellen Sikwayara
occurred on 20 March 1996 when she died without a will. This was before the new
succession regime introduced by the Administration of Estates Amendment Act 6
of 1997 came into effect on 1 November 1997. Clearly, therefore, the applicant
has an arguable case that the late Stanley Maseko may have inherited on his own
in terms of the then prevailing law.
Thankfully, that is not the subject of the present inquiry,
which is simply whether the late Stanley Maseko did inherit from his late
mother's estate be it on his own or along with his sisters.
The first respondent has got it all wrong as her
submissions are premised on who survived their mother at the time of the
belated winding up of her estate in 2014. As already stated, Stanley Maseko
died on 13 August 2013, seventeen (17) years after his mother died. The
intestacy occurred when Ellen Sikwayana died in 1996 which is the time when the
intestate heirs are determined.
The present case is therefore distinguishable from a
situation where an estate inherits intestate from another estate which would
occur when the intestate heir dies before the intestacy occurs.
In that situation the common law of intestate succession
that a deceased estate cannot inherit ab intestate would apply. By the time
Stanley Maseko died he had already inherited from his mother's estate. As such,
his own estate is entitled to that inheritance.
Accordingly, it was incompetent for the respondents to share
their mother's estate to the exclusion of the estate of the late Stanley
Maseko. That construction is also supported by the Assistant Master, whose
report, made in terms of Rule 248 of the High Court of Zimbabwe Rules, 1971,
was submitted belatedly on 9 March 2016….,.
In the result, it is ordered that:
1. The winding up of the estate late Ellen Sikwayara, in
terms of the Letters of Administration issued under DRBY692/14, is hereby
declared null and void and is set aside.
2. The estate in question is re-opened for administration
de novo.
3. The fifth respondent shall appoint an independent
executor to wind up the estate in question.
4. Each party shall bear its own costs.
