MAKONESE
J: The
Applicant has filed an application for maintenance in terms of the
Wills Act [Chapter 6:06]. In particular, reliance was placed on the
provisions of Section 18 of the Wills Act. The relief sought by the
Applicant in the Draft Order is as follows:
“IT
IS ORDERED THAT:
The
estate of the late Manuel Arthur Da Silva shall be distributed in
terms of section 18 of the Wills Act, [Chapter 6:06].”
The
Applicant claims that she was married to the late Manuel Arthur Da
Silva in terms of an unregistered customary law union in 1990, with
whom she had five children, three of them being minors. Manuel Arthur
Da Silva having died on the 28th
August 2006, the Applicant claims that her children are entitled to
inherit from the deceased in their capacity as legitimate children.
The
application is opposed by the First Respondent who denies that
Applicant was married to the late Manuel Arthur Da Silva in terms of
customary law.
Further,
First Respondent denies that Applicant's children are entitled to
inherit from the deceased as legitimate children.
It
is not in dispute that the deceased and first Respondent's mother
were divorced in 1978. In 1979 the deceased then proceeded to write a
Will bequeathing his entire estate to his daughter the first
Respondent. The estate of the late Manuel Arthur Da Silva was
registered with this court under DRB No. 855/06. First Respondent was
appointed Executrix Dative on the 27th
August 2006. The Estate has since been wound up.
Preliminary
Issue
Before
I deal with the matter on the merits, I propose to dispose of the
preliminary issue that has been raised by the First Respondent.
It
has been argued by the First Respondent that the application is
defective and should be struck out as it is irregular. The contention
by the First Respondent is that the application states on the face of
it that it is “Court Application For Maintenance in terms of the
Wills Act [Chapter 6:06]”, but does not reflect in the Founding
Affidavit that an application is being made for maintenance in terms
of the Wills Act.
In
any event, it is argued, the relief sought in terms of the Draft
Order annexed to that application does not make any reference to any
amount of maintenance being claimed by the Applicant.
First
Respondent correctly points out, in my view that the form of the
application is guided by the provisions of Rule 227(2)(a) of the High
Court Rules, 1971, which provides as follows:
“Every
written application and notice of opposition shall –
(a)
state the title of the matter and a description of the document
concerned.”
The
First Respondent avers that the form and content of the application
before the court is irregular, and must be struck out as being
fatally defective.
I
do not agree that the irregularity complained of goes to the root of
the substance and form of the application. The Applicant is entitled
to be heard on the merits and there is no prejudice to the First
Respondent.
I
would, accordingly dismiss the point in
limine.
The
Merits
The
Applicant claims in the Founding Affidavit that she entered into an
unregistered customary law union with the late Manuel Arthur Da Silva
sometime in 1990. The same averment is boldly asserted in the
Applicant's Heads of Argument.
Applicant
has chosen not to place before the court any evidence whether verbal
or written to prove that indeed there existed a customary marriage
between Applicant and the late Manuel Arthur Da Silva.
It
is not entirely clear why the Applicant took it for granted that the
court would on her mere say so agree that there existed such a
customary union.
It
has not been disputed that Applicant is of mixed race, colloquially
referred to as “Coloured”. The late Manuel Arthur Da Silva was of
Portuguese nationality and European descent.
It
is common cause that neither the Applicant, nor the deceased could
enter into a customarily law union, and such a union would be alien
to them.
African
customary law unions are usually between persons of African descent
and follow the rules and customs of African customary law.
The
two parties, Applicant and the late Manuel Arthur Da Silva, could
never by any stretch of imagination claim to have entered into a
union in accordance with the customary practices and are therefore
not subject to customary law. Their relationship or union could never
be elevated to a customary law union.
The
Applicant has not provided the court with any evidence that the
marriage between the parties was solemnized in terms of customary
law. There is no evidence that the late Manuel Arthur Da Silva
undertook the requisite procedural requirements to solemnize a
customary law union and no lobola was paid.
The
First Respondent's legal practitioner referred the court to the
case of Vuyisile
Khanye v Sibongile Msipha No and Others
HB51/05.
The matter is relevant to the present case.
In
that matter the Applicant could not provide any evidence as to the
existence of a customary marriage. The learned judge, NDOU J alluded
to the fact that it was important to file affidavits from relevant
parties such as aunts and go-betweens as proof of the existence of a
customary marriage. The learned judge also cited with approval the
cases of Mtuda
v Ndodzo
2000 (1) ZLR 710 (H), Ntini
v Masuku
HB69/03, Muringaniza
v Munyikwa
HB103/03 and Matibiri
v Kumwe
2000 (1) ZLR 492 (H).
In
casu
the Applicant has failed to discharge the onus to prove on a balance
of probabilities, that she entered into a valid customary law union
with the late Manuel Arthur Da Silva.
It
follows, therefore, that once the finding has been made that the
Applicant was not customarily married to the late Manuel Arthur Da
Silva, the children born of such purported customary marriage are
illegitimate.
The
Applicant has sought to place reliance on the provisions of section
18(1) of the Wills Act which provides as follows:
“Effect
of subsequent birth, legitimation or adoption of children on will
(1)
If, after a testator has made a will -
(a)
a child is born, of whom the testator is the mother or, the child
being legitimate, the father; or
(b)
an illegitimate child of the testator is legitimated or, in
accordance with customary law, is legitimated or otherwise
acknowledged or recognised as a child of its father; or
(c)
the testator adopts a child in accordance with the law relating to
adoption;
then,
unless the will makes some other provision for the child or unless it
clearly appears that the testator intended otherwise, the child shall
be entitled to the following benefits from the testator's estate –
(i)
if the will makes no provision for any child of the testator, the
child shall be entitled to any benefit that he would have received if
the testator had died intestate; or
(ii)
if the will makes provision for any other child or children of the
testator, the child shall be entitled to the same benefits as, or to
benefits of equivalent value to, those that are receivable under the
will by –
A.
the other child or children, where there is only one such other or
where the will treats all such other children equally; or
B.
the other child or other children, as the case may be, who receive
the benefits of smallest value, where the will treats the other such
children differently.
2.
The benefits payable in terms of this section to a child referred to
in paragraph 9(a), (b) or (c) of subsection (1) shall be deemed to be
–
(a)
a legacy payable under the will concerned, if the will makes no
provision for any child of the testator or if the will provides for a
legacy to be paid to each other such child or to the child who
receives the benefits of smallest value, as the case may be:”
The
Applicant has made the bold allegation that all the five children
were fathered by the late Manuel Arthur Da Silva without providing
any evidence save that two of the children, namely, Trent Da Silva
and Eliza Da Silva have birth certificates in which their last name
is recorded as Da Silva.
As
provided in Section 18(1) of the Wills Act, an illegitimate child can
only be entitled to benefit from the testator's estate where that
illegitimate child of the testator is legitimated.
It
is now settled law that the fact that the father's name appears on
the child's certificate does not mean that the father has any
rights of guardianship or custody.
Needless
to say that, the fact that the father's name appears on the child's
birth certificate does not have the effect of legitimating the child.
See the case of Katedza
v Chunga and others
HC50/03.
The
Applicant did not attempt to explain how the children born out of the
union with the late Manuel Arthur Da Silva were legitimated.
It
ought to be noted that in terms of our law, the natural father may
adopt the child or make application for guardianship under the
Guardianship of Minors Act [Chapter 5:08].
In
casu,
notwithstanding the fact that the late Manuel Arthur Da Silva may
have maintained the children he had with the Applicant, and that two
of the children's birth certificates bear the surname of their
father, there is no indication that the late Manuel Arthur Da Silva
undertook to take any lawful steps recognized under our law to
legitimate the children.
I
am satisfied that on the facts presented by the parties, the
Applicant's illegitimate children have not been legitimated for the
purposes of section 18(1) of the Wills Act.
I
have no difficulty in concluding that the Applicant has failed to
prove that she entered into a customary law union with the late
Manuel Arthur Da Silva and consequently any children born out of such
a union were illegitimate children.
In
the result the children born out of the union between Applicant and
the late Arthur Da Silva are not entitled to inheritance in terms of
Section 18(1) of the Wills Act.
I,
therefore, dismiss the Applicant's claims with costs.
Zimbabwe
Women Lawyers Association,
applicant's legal practitioners
Messrs
Webb Low and Barry,
1st
respondent's practitioners
