ZHOU
J:
This
is an application for the setting aside on review of the decision of
the first respondent in terms of which the third respondent was held
to have been married to the deceased Lovemore Chipunza Sekeramayi
(hereinafter referred to as “the deceased”), and for a
declaration that the decision of the second respondent in terms of
which the third respondent was declared to be a spouse of the
deceased was null and void. The application is opposed by the third
respondent.
The
first, third and fourth applicants are siblings of the deceased. The
second applicant is a cousin brother of the deceased. The fifth
applicant was a wife of the deceased. They were married in terms of
the then African Marriages Act [Chapter
238]
in 1982.
The
deceased died at Maseru, Lesotho, on 4 June 2014. His estate was
registered with the office of the first respondent under DR892/14.
The third respondent was living together with the deceased at the
time of his marriage. The true nature of their relationship is being
disputed. Her case is that she was in an unregistered customary law
marriage with the deceased. The applicants contend that she was
merely cohabiting with him.
From
the papers, the matter was referred to the Additional Master, T.
Manhanzva, who came to the conclusion that he could not confirm the
alleged unregistered customary law union between the deceased and the
third respondent.
The
fifth respondent then proceeded to register the same estate of the
deceased in the Magistrates Court under DRH1009/14. It is not clear
how that registration took place.
What
is apparent is that the matter ended up before a Magistrate, B.
Pabwe, on 1 October 2014. The parties in that matter are stated as
“Estate Late” being the applicant and “Lovemore Chipunza
Sekeramayi” as the respondent. The “judgment” (which is altered
in handwriting to read “decision”) of Mr Pabwe is expressed in
two sentences as follows:
“The
customary marriage between Esther Dzwowa to the late be and is hereby
confirmed. Esther Dzwowa be and is hereby confirmed to have been
customarily married to the late.”
It
is difficult to understand how the matter ended up before the
Magistrate. More seriously, the parties stated are non-existent. The
applicant is not a legal persona while the stated respondent was
deceased. Such proceedings could only be a legal nullity because
there were no persons involved. The matter was between non-existent
persons.
On
1 June 2015 a meeting was held which the first respondent presided
over. The meeting deliberated on a number of issues.
Regarding
the immovable property in Chisipite, the minutes record that the
executor was to verify the allegation that it had been donated to the
deceased by his late father. It is recorded in the minutes that the
property was registered in the name of the deceased and not that of
the father. The first respondent advised the persons who attended the
meeting that the deceased was being treated as having died intestate
because there was no will which had been produced. He determined that
the deceased had two wives, namely, the fifth applicant and third
respondent. The two wives were to be the beneficiaries of the
deceased's estate while the deceased's mother would be regarded
as a dependent.
Based
on that he proceeded to distribute the assets of the deceased on the
basis that the parties had failed to agree on a distribution plan.
Although
the minutes attached to the papers do not specifically record that,
it is stated by the applicants, and is not disputed by the third
respondent, that the first respondent proceeded to allocate an
immovable property in Chisipite, Harare to the third respondent. The
minutes merely recite the provisions of the Act relating to a
situation where the wives of a deceased man lived separately but
makes no definite determination on the matter. The first respondent
distributed the other assets between the fifth applicant and the
third respondent in such a way that the fifth applicant would receive
two thirds while the third respondent was to receive one third of the
residue of the estate.
The
instant application seeks to impeach the decision of the Master on
the grounds of review which are summarized in the court application.
In
addition to contesting the relief which is being sought on the merits
the respondents objected in
limine to
the determination of the matter on the merits on the following
grounds:
(a)
that the application for review is improperly before this court as it
was filed out of time in circumstances where condonation has not been
sought and granted;
(b)
that the first, second, third and fourth applicants have no rights in
respect of which they would be entitled to seek a declaratur given
that they are not beneficiaries to the estate of the deceased as long
as the deceased's wives are there;
(c)
that there is material non-disclosure on the part of the applicants
which vitiates the application.
A
fourth point raised, that the applicants were represented by a legal
practitioner when the Magistrate made his decision that the third
respondent was married to the deceased under customary law relates to
the merits of the case and cannot be raised by way of an objection in
limine.
The
declaratory relief was abandoned by the applicants, through their
counsel at the hearing. The issue of the non-disclosure, as
submitted by Miss Maramba
for
the third respondent is one that also pertains to the merits of the
application, as it relates to the merits, save for the aspect
relating to the dismissal for want of prosecution of a matter
instituted by the third and fifth applicants under Case No.
HC9585/14. That application was dismissed for want of prosecution.
The failure to disclose the dismissal of that case, while material,
would not dispose of this matter wholly or in part even if the court
accepted that there was such non-disclosure. It is a factor that
would have to be considered together with the other factors relative
to the merits of the application. Also, the issue affects only two of
the five applicants.
As
for the question of the application having been filed out of time,
the requirements of the rules are trite.
Order
33 rule 259 of the High Court Rules, 1971 provides that any
proceedings by way of review shall be instituted within eight weeks
of the termination of the suit, action or proceeding in which the
irregularity or illegality complained of is alleged to have occurred.
The
minutes which are attached to the applicants' application show that
the meeting at which the impugned decisions were made was held on 1
June 2015. The instant application was filed on 16 July 2015. That
date falls within the period of eight weeks. The application was
therefore instituted timeously.
In
dealing with the grounds of review I will not necessarily follow the
order in which they are summarized in the court application.
The
first issue that I wish to consider is the alleged gross irregularity
which arose from the Master's alleged acceptance of the judgment of
the Provincial Magistrate Pabwe that the third respondent was
customarily married to the deceased.
The
minutes do not suggest that the first respondent relied on the
decision of the Provincial Magistrate when he came to the conclusion
that the third respondent was married to the deceased. Significantly,
however, there is nothing to show what evidence was placed before the
first respondent to enable him to come to the conclusion that the
third respondent was the deceased's wife. The only statement which
refers to the third respondent was made by the fourth respondent, and
is recorded as follows:
“Ms
Munangati submitted that according to her findings Faith and the late
Lovemore had separated for more than 20 years and Esther was living
with the deceased up to the time of death. However, it would appear
that Esther had a bad relationship with the relatives of the
deceased.” There is nothing in that statement which suggests the
existence of an unregistered customary law marriage. Living together
is not the same as being married.
After
all, the fourth respondent was merely reporting on what she had also
found and not what she had personally witnessed in relation to the
relationship between the deceased and the third respondent.
The
conclusion by the first respondent that the deceased had two wives is
therefore not based upon any evidence which was placed before him.
That is where the gross irregularity would arise, in the sense that
in the absence of evidence the conclusion was so grossly unreasonable
that no reasonable person who had applied his mind to the matter
before him would have come to that conclusion. Indeed, even the third
respondent herself is not reported to have placed any evidence of the
alleged relationship before the Master at that meeting.
The
other ground of review relied upon by the applicants is that the
first respondent did not have the jurisdiction to determine whether
or not the third respondent was married to the deceased person.
There
is no explicit provision in the Administration of Estates Act
[Chapter
6:01]
which gives the Master the power to determine who is or is not a
spouse of a deceased person. He, as illustrated above, made that
determination. However, the powers given to him under section 68F to
resolve disputes between beneficiaries and the executor would
necessarily involve ascertaining the relationships of the
beneficiaries to the deceased. That, in my view, would include
determining whether a particular person was a spouse of the deceased.
The
other decision of the first respondent which the applicants complain
of is the awarding of the Chisipite immovable property to the third
respondent.
The
only reason given is that the third respondent lived in that house at
the time that the deceased died. Nothing is said about whether there
is another immovable property of value which the fifth applicant
would inherit. To disinherit a woman who is legally married to the
deceased on the basis that she did not live in the house without
considering where she would live is, in my view, grossly irregular.
There is no indication as to what other property was owned by the
deceased other than that immovable property and the household goods
at that house. The decision to award the third respondent the
immovable property is also difficult to justify when one considers
that the Master had earlier on advised that the question of how that
immovable property was registered in the name of the deceased was to
be established by the executor.
I
am not satisfied that there is evidence of bias on the part of the
first respondent on the papers filed in this case. While the decision
to award the Chisipite immovable property to the third respondent can
be impeached on the ground of gross unreasonableness, it does not
show impartiality. It simply illustrates a failure to apply the mind
to the relevant considerations, including the fact that the fifth
applicant was the only woman who had a registered marriage with the
deceased, and the fact that no other immovable property of value was
found to be available to her if the Chisipite property is to be
allocated to the third respondent. Also, the first respondent did
not even apply his mind to whether he was giving the third respondent
ownership of the Chisipite property or a usufruct. As noted above,
the minutes do not reflect the precise decision of the first
respondent in relation to that property other than the recital of the
legal provisions.
As
for the costs, there is no reason why these should not follow the
result. The third respondent has strenuously opposed the relief
which is being sought by the applicants even though the decision
which was sought to be set aside is that of the first respondent.
In
all the circumstances of this case, the application ought to succeed
with costs.
In
the result, IT IS ORDERED THAT:
1.
The decision of first respondent to declare that the third respondent
was a surviving spouse of the deceased Lovemore Chipunza Sekeramayi
be and is hereby set aside.
2.
The allocation of the immovable property located at No.31 Hindhead
Avenue, Chisipte, Harare, to the third respondent be and is hereby
set aside.
3.
The first respondent is directed to convene a meeting and call for
evidence from witnesses regarding the status of the relationship
between the third respondent and the deceased and, thereafter, direct
the Executor to distribute the estate of the deceased in a manner
that does not prejudice the fifth applicant's rights in respect of
the immovable property referred to in paragraph 2 hereof.
4.
The third respondent shall pay the costs of this application.
Tadiwa
& Associates,
applicants' legal practitioners
Maposa,
Ndomene & Maramba,
third respondent's legal practitioners
