CHITAKUNYE
J:
In
this application the applicant seeks an order, inter alia, that:-
1.
The applicant be and is hereby declared the sole beneficiary for
house No. 4040 Glen Norah A, Harare, registered in the name of the
late Fred Garikayi Muchenje and consequently the 1st Respondent be
and is hereby directed to reflect that position in the distribution
account for Estate Late Fred Garikayi Muchenje, DR565/12.
2.
The third respondent be and is hereby ordered to effect cession of
ownership of house no. 4040 Glen Norah A, Harare from the name of the
late Fred Garikayi Muchenje into the name of the applicant upon
receipt of a distribution account prepared by the first respondent
and approved by second respondent.
I
must at the outset express my disquiet at the applicant's
affidavits.
An
affidavit is supposed to be a sworn statement of facts deposed to by
a deponent on facts that are within the knowledge or belief of the
deponent.
In
this case both the founding affidavit and the answering affidavit
read more like the legal practitioner's heads of argument.
Such
heads of argument are mostly on legal opinions.
The
facts relevant to the applicant's version are scantly sprinkled
here and there and in some instances seem tailored to suit the legal
argument being proffered.
I
am of the view that legal practitioners in preparing affidavits for
clients must desist from implanting their own arguments at the
expense of the deponent telling their own story.
Legal
opinion and must be kept to the minimum as that has its bigger share
in the heads of arguments.
I
nevertheless decided to consider the application despite the above
noted anomalies with the applicant's affidavits.
The
applicant was married to the late Fred Garikayi Muchenje in 1965 in
terms of the Marriages Act (now Chapter 5:11). In 1972 the late Fred
Garikayi Muchenje (hereinafter referred to as the late Fred) was
offered tenancy of Stand 4040 Glen Norah A, Harare. In order to
qualify for that tenancy he had tendered his marriage certificate as
was required then. That house was eventually offered for purchase to
the late Fred as a sitting tenant in 1981.
On
the 22 March 2012 the late Fred passed on.
At
the time of his death the late Fred and applicant were no longer
staying together as husband and wife. The applicant was not clear as
to when they separated. She only stated that during his lifetime her
husband consummated an adulterous affair with another woman and he
subsequently chased applicant out of the matrimonial home.
Nowhere
in her affidavits did she disclose when she was chased away.
It
was, however, agreed that at the time of his death the late Fred was
staying with this other woman, Stembile Muchenje, at the property in
question.
It
was only in the opposing affidavit that the first respondent revealed
that the two had lived apart for 37 years prior to the late Fred's
death.
The
applicant did not dispute that. It is thus taken as accepted.
It
is common cause that the first respondent was appointed executor
dative in the estate late Fred after which he proceeded with the
administration of the estate.
In
his administration he accepted applicant as the surviving spouse but
noted that she was not staying at the property in question at the
time of Fred's death as the two had separated about 37 years ago.
Upon
considering all potential beneficiaries comprising the late Fred's
ten children and applicant the executor prepared his first and final
distribution account and submitted it to the Master for confirmation.
Upon
not receiving any objection during the period the account lay for
inspection, the Master duly confirmed that account on 4 September
2012.
In
the distribution account the executor identified essentially the
house in question as the only major asset for distribution. There
being 11 beneficiaries, that is 10 children and one surviving spouse
the executor allocated equal shares to each of the beneficiaries
resulting in applicant being awarded a child's share.
It
was after the confirmation that on 31 October 2012, the applicant
filed this application purportedly seeking a declaratory order.
However
an examination of the relief sought shows that in effect applicant is
seeking to have the confirmed account set aside without applying for
review of the Master's decision.
For
instance she seeks that she be declared the sole beneficiary for the
house in question and that the first respondent be directed to
reflect that change in the distribution account and that the second
respondent be ordered to effect that change by effecting cession in
favour of the applicant and to the detriment of other beneficiaries.
The
applicant is thus seeking to have the confirmed distribution account
changed in her favour without following the procedure for challenging
the distribution account set out in the Administration of Estates
Act, [Chapter 6:01].
Section
52(8) of the Administration of Estates Act, [Chapter 6:01] provides
that:-
“Any
person interested in the estate may at any time before the expiration
of the period allowed for inspection lodge with the Master in writing
any objection with the reasons thereof, to that account.”
Section
52(9) enjoins the Master to consider such account together with any
objections that may have been duly lodged and to give such directions
thereon as he may deem fit.
An
aggrieved party is given the opportunity to challenge the Masters'
decision. In this regard s52(9)(i) of the Act provides that:
“Any
person aggrieved by any such direction of the Master may, within
thirty days after the date of the Master's direction, and after
giving notice to the executor and to any person affected by the
direction, apply by motion to the High Court for an order to set
aside the direction and the High Court may make such order as it may
think fit.”
In
casu, the applicant did none of the above.
The
applicant did not raise any objections nor did she challenge the
Master's decision within 30 days from date of confirmation.
The
application is thus not proper. I would thus dismiss the application
with costs on that basis.
I
am of the view that even on the merits the application would not have
succeeded. I thus proceed to elucidate my reasons below.
The
applicant's application was premised on a misconception.
She
alleged that the executor recognised the late Fred's marriage to
Stembile Muchenje as valid and accepted Stembile as a surviving
spouse entitled to the house. Unfortunately that is not the case.
The
first respondent indicated that he did not recognise Stembile as a
surviving spouse deserving the house but recognised applicant as the
surviving spouse.
The
applicant alluded to the first respondent's letter to the Master
dated 14 June 2012 as confirmation that the first respondent had
accepted Stembile as a surviving spouse as a result of which he
denied applicant that status.
A
perusal of that letter does not support applicant's assertion.
In
that letter whilst acknowledging that the late Fred had married
Stembile in terms of the Marriages Act [Chapter 5:11], the first
respondent clearly indicated that Stembile Muchenje's marriage
could not be recognised as the first marriage was still valid. He
categorically stated that the beneficiaries to the estate were the
applicant as the surviving spouse and the 10 children. To quote his
own words:-
“It
was however noted that the deceased had married all his wives in
terms of Marriages Act, chapter 5:11. It therefore means that Mrs.
Stembile Muchenje's marriage to the deceased could not be
recognised as the first marriage was still valid. This therefore left
the estate with 11 eleven beneficiaries being one wife Jessie Chinzou
and 10 children.”
The
key factor which the first respondent considered was that at the time
of Fred's death applicant had not been staying at the house in
question.
Thus
in applying s3A of the Deceased Estates Succession Act [Chapter 6:02]
the first respondent concluded that it cannot be said applicant was
living at the property immediately before the demise of Fred.
It
is that finding that made him not award the house to applicant.
The
issue for determination is thus whether applicant was staying at the
house immediately before Fred's death so as to benefit in terms of
s3A.
Section
3A of the Deceased Estates Succession Act, [Chapter 6:02], provides
that:-
“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 maybe, 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 the house or domestic
premises referred to in paragraph (a) where such house, premises,
goods and effects form part of the deceased person's estate.”
Counsel
for both parties agreed that generally the literal rule of
interpretation is the first port of call when construing legislation.
In
Endevour Foundation and Another v Commissioner of Taxes 1995 (1) ZLR
339 (S) at pp365F to 357A GUBBAY CJ had this to say on the principals
of interpretation:
“The
general principle of interpretation is that the ordinary, plain,
literal meaning of the word or expression, that is as popularly
understood, is to be adopted, unless that meaning is at variance with
the intention of the legislature as shown by the context, or such
other inducia as the court is justified in taking into account, or
create an anomaly or otherwise produces an irrational result. See
Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd &
Another 1962 (1) SA 458 (A) at 476E-F.
The
same notion was expressed in another way by Margo J in Loryan (Pvt)
Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at
846G-H.”
In
casu, it is common cause that the applicant was not living at the
house with the late Fred at the time of his demise.
It
is in those circumstances that applicant argued that the
interpretation of the term “immediately before the person's
death” be construed to include her situation since she was the only
surviving spouse.
Counsel
for the applicant argued that a purposive approach is what would meet
the justice of the case.
The
mischief intended to be addressed by the legislature must be
considered.
In
considering the mischief the section was intended to address it is
clear to me that the circumstances of each case must be considered in
its own context. In this regard the words of WESSELS JA in
Stellenbosch Farmers' Winery Ltd v Distillers Corp (SA) (supra) are
apposite. The learned judge said that:-
“It
is the duty of the court to read the section of the Act which
requires interpretation sensibly, i.e., with due regard, on the other
hand, to the meaning which permitted grammatical usage assigns to the
words used in the section in question, and, on the other hand, to the
contextual sense, which involves consideration of the language of the
rest of the statute as well as the matter of the statute, its
apparent scope and purpose, and within limits, its background.”
In
considering the matter of the statute, its scope purpose and
background of the legislation in question it is appropriate to
identify the mischief that was intended to be addressed by the
section or sections.
In
Chimhowa & Others v Chimhowa & Others 2011 (2) ZLR 471 at
475G – 476C, CHIWESHE JP had occasion to deal with sections 3A of
the Deceased Estates Succession Act and 68F of the Administration of
Estates Act, as in this case, and this is what he said:-
“In
reading the legislation governing deceased estates in so far as the
rights of surviving spouses are concerned, it is important to bear in
mind the intention of the legislature, bearing in mind that this
branch of the law has in the last decade been the subject of much
debate and controversy.
A
number of amendments have been brought to bear to this branch of the
law.
The
chief driver of this process has been the desire by the legislature
to protect widows and minor children against the growing practice by
relatives of deceased persons to plunder the matrimonial property
acquired by the spouses during the subsistence of the marriage.
Under
this practice, which had become rampant, many widows were deprived of
houses and family property by marauding relatives, thus exposing the
widows and their minor children to the vagaries of destitution.
In
many cases the culprit relatives would not have contributed anything
in the acquisition of such immovable and movable properties, often
the result of years of toil on the part of the deceased and the
surviving spouse.
This
is the mischief that the legislature sought to suppress in
introducing the provisions such as s3A of the Deceased Estates
Succession Act and s68F of the Administration of Estates Act and the
Deceased Persons Family Maintenance Act [Cap 6:03]”.
In
the interpretation of the sections in question the above intention of
the legislature must not be lost.
In
casu, it is apparent that the deceased and applicant were allocated
the house on a purely rent basis.
According
to Annexure “C” tendered by the applicant, which is a letter
dated 14 January 2013, from City of Harare, the decision to sell
rented properties to sitting tenants was only made in about 1980.
Deceased
was offered the property to buy on 1 January 1981 and he signed his
application to purchase the property on 16 June 1981. He thereafter
signed the Deed of sale on 6 April 1983. The portion applicant was
supposed to sign as co purchaser remained unsigned to date. That did
not stop the property being sold to deceased. The deceased apparently
paid for the property in terms of the purchase agreement.
Since
at the time of deceased's death the applicant had been away for
about 37 years it follows that the applicant separated from deceased
well before the decision to sell the property was made. That is
deceased died in 2012 less 37 years takes us to 1977.
Though
the applicant in her founding affidavit said she had been constantly
asserting her rights by visiting the house right up to the late
Fred's demise such was just a bald assertion without any substance.
I
am inclined to believe she was not being candid at all.
Clearly
after leaving the matrimonial home she does not seem to have taken
any legal steps to assert her rights in the property. She cannot be
said to have been staying at that property for those 37 years.
I
am of the view that the intention of the legislature was that a
surviving spouse in an intestate estate should not be uprooted from
the house or domestic premises he/she lived in immediately before the
death of the person, and provided such property formed part of the
deceased person's estate.
In
casu, the applicant had last lived in the premises 37 years before
the death of the deceased. That in my view cannot by any stretch of
imagination be termed immediately before deceased's death.
The
fact that this was the only immovable property owned by the deceased
would still not make it “immediately”.
I
thus conclude that even applying the purposive approach it cannot be
said applicant lived in the house immediately before deceased's
death. She had last been there 37 years ago. Her absence was not
because she had gone for employment or for such other activities as
would still entitle her to come back upon completion.
It
was not her contention that she was living at the late Fred's rural
home or other premises owned or under the control of the late Fred.
According
to applicant she had been chased away by the deceased and she stayed
away for 37 years. During those 37 years she did not allege that she
was dependent on the late Fred for shelter or other amenities of
life. The impression created is that she had virtually been banished
from the late Fred's life for those 37 years.
I
do not think that it was the intention of the legislature that either
of the spouses, who had lived on separation for such a long period as
37 years, in a situation I would describe as de facto divorce, would
be entitled to come back at the demise of the other spouse and be
awarded the house as his/her exclusive property to the exclusion of
children of the marriage and subsequent unions who had been born and
lived at the house.
I
am of the view that one should have links of living as husband and
wife prior to the deceased person's death.
In
casu, such links were no longer there but for the marriage
certificate.
It
was also argued that applicant contributed towards the acquisition of
the house and so she should be entitled to the house.
In
terms of her contribution towards the purchase of the house in
question, it may be noted that at the time she left the couple were
simply leasing the property from the Council. It was not a lease to
buy. The decision to offer sitting tenants the option to purchase was
made in 1980 and this was after applicant had left the house. She
could not have contributed towards the purchase of that property at
all.
It
is thus incorrect to say she immensely contributed towards the
purchasing of that property as her legal practitioner seemed to
argue.
Clearly
the only reason she has to benefit is that despite being chased away
the marriage remained extant as neither party formally sought a
decree of divorce. It is that link that first respondent properly
recognised and considered her as the only surviving spouse.
By
virtue of being the only surviving spouse she is a beneficiary in the
estate late Fred, but cannot, in my view inherit the house to the
exclusion of the deceased's children in terms of section 3A of the
Act.
Section
68F(d)(i) of the Administration of Estates Act provides, in relation
to the estate of persons who die intestate, that:-
“… where
the deceased person is survived by one spouse and one or more
children, the surviving spouse should get - ownership of, or if that
is impracticable, a usufruct over, the house in which the spouse
lived at the time of the deceased's death, together with all the
household goods in that house, …”
Evidently
the aspect of where the spouse lived at the time of deceased's
death is important.
In
casu, the applicant was not living at the house in question at the
time of deceased's death. It is thus clear to me that the first
respondent did not err in not awarding the house to applicant.
Apart
from the applicant there are children of the deceased who are
beneficiaries to the estate.
This
is thus not a case of marauding relatives evicting or denying
applicant the inheritance. It is a matter of the applicant and the 10
children of the late Fred sharing the estate in equal shares. These
children comprised her own children and those borne to the deceased
and Stembile. These children had lived at this house as their home. I
am of the view that the circumstances of this case are such that
applicant must share the house with deceased's children.
Accordingly
the application is hereby dismissed with costs.
Matsikidze
& Mucheche, applicant's legal practitioners
Chatsanga
& partners, 1st respondent's legal practitioners
