CHITAKUNYE
AJA: On
18 May 2021 at the conclusion of the hearing of this appeal, we
dismissed the appeal with costs. We indicated that our reasons will
follow in due course. These are the reasons.
This
is an appeal against the whole judgment of the High Court handed down
on 23 July 2020 as judgment Number HH485/20 in which the court a
quo
ordered the eviction of the appellant and all those claiming
occupation through her from House Number 1138 Section 3, Kambuzuma,
Harare.
BACKGROUND
The
respondent issued summons seeking the eviction of the appellant and
all those claiming occupation through her from House Number 1138
Section 3, Kambuzuma, Harare.
In
his summons and declaration, the respondent averred that he is the
owner of the house in question by virtue of Deed of Transfer No.
3302/94. He further explained that the appellant was one of his late
father's three wives and she is staying at the property despite
having her own house as provided to her by her late husband.
Of
his late father's three wives, one resided in a house she was left
in by his father in Section 5, Kambuzuma, his mother and the
appellant were left residing in the house in question in Section 3,
Kambuzuma.
The
respondent's late father, MWAONEKA ISAAC MHLANGA, had a plan to
provide all his wives with their own houses.
The
property in issue was for the first wife, the respondent's mother.
The third wife had a house provided for her in Kambuzuma Section 5,
through a co-operative and to the appellant, the deceased had
arranged that she joins a housing co-operative in Mabvuku in 1989 as
a result of which she was allocated Stand Number 10700 in New
Mabvuku.
The
respondent's father, however, passed on in 1993 before he could
build a house in Mabvuku for the appellant. Nonetheless, the
cooperative had since built a house for her which she is renting out.
The
appellant refused to move out of the house in Section 3, Kambuzuma
where she is occupying four of the six rooms.
In
her plea, the appellant confirmed that indeed the respondent
inherited the house from the deceased estate of his late father as an
heir.
She,
however, contended that as heir, he has an obligation to provide her
with alternative accommodation.
She
further contended that no house was acquired for her in New Mabvuku,
the house actually belongs to the Cooperative as payments for the
house were made by her daughter as she was incapacitated to do so.
She
further indicated that she only uses three rooms and this arrangement
was sanctioned by the Master of the High Court at an edict meeting
held in 1994, wherein it was ruled that the appellant and the
respondent's mother should continue staying at the house.
In
essence her argument was premised on the belief that as a surviving
spouse to the respondent's late father, she is entitled to continue
staying at the property and can only be removed if the respondent
provides her with alternative accommodation.
The
issues for trial were identified as follows:
(i)
Whether or not the respondent still has an obligation to provide the
appellant with accommodation, when the appellant now has her own
house;
(ii)
Whether or not the appellant joined the housing cooperative in
Mabvuku at the instigation of the plaintiff's father; and
(iii)
Whether or not the appellant should pay arrear rentals, holding over
damages and costs on a higher scale.
The
parties agreed on the following admissions:
(i)
That the respondent had inherited House Number 1138 Section 3
Kambuzuma in his own right in May 1994;
(ii)
That the respondent had provided appellant with accommodation from
1994 to the date of summons, a period of 21 years;
(iii)
That, the appellant had joined a housing co-operative in Mabvuku,
while her husband was still alive; and
(iv)
That appellant was allocated House No. 10700 in New Mabvuku in 2005
and is now a landlady.
At
the hearing the respondent abandoned his claims for arrear rental and
holding over damages but persisted with the claim for eviction.
Each
party called one witness as most of the facts were common cause.
It
was common cause that the New Mabvuku house though still in the name
of Kugarika Kushinga Co-operative, had for all intents and purposes
become the appellant's house.
In
this regard the appellant conceded that one of her children occupies
part of the house whilst she leases out the other part. She, as the
'landlady' is in receipt of monthly rentals in that regard. She
also confirmed that all payments to the co-operative and to the City
of Harare are made in her name as the owner.
Despite
the above concessions on her entitlement to the New Mabvuku house,
the appellant insisted that the respondent must still provide her
with alternative accommodation whilst she leases out her New Mabvuku
house for profit.
Upon
analysis of the evidence and the law on the subject matter, the court
a
quo
held that for the appellant to insist that she continues to reside in
the respondent's house unless she is provided with alternative
accommodation by the heir when she clearly has her own accommodation
would, result in an absurd situation in which she will remain at the
property in question interfering with the respondent's enjoyment of
his real rights.
It
will mean that for pre 1st
November 1997 estates under customary law, of which there are still
many when the law of inheritance was changed to do away with the
all-powerful heir, even those dependants who have a house or houses
of their own, would still insist that the heir should still provide
them with alternative accommodation.
In
the circumstances of this case the court a
quo
granted an order for the eviction of the appellant from the property.
Aggrieved
by that decision the appellant noted this appeal on four grounds.
GROUNDS
OF APPEAL
1.
The court a
quo
erred in finding that under customary law an heir only had a duty to
look after his late father's wife where such wife had no other
suitable accommodation.
2.
Further, the court a
quo
erred in finding that the appellant interfered with the respondent's
real rights if she remained in occupation of the immovable property
inherited from her late husband by the respondent in his capacity as
an heir.
3.
Furthermore, the court a
quo
erred in suggesting that the respondent's obligation to look after
the appellant subsisted only until the deceased estate had been wound
up and not for good.
4.
The court a
quo
further erred in ordering the eviction of the appellant from her
matrimonial home after correctly finding that the respondent as heir
had not offered her alternative accommodation.
RELIEF
SOUGHT
(a)
That the appeal be allowed with costs.
(b)
That the judgment of the court a
quo
be set aside and that the following order be made in its place;
“The
plaintiff's claim for eviction of Defendant from House No. 113B
Section 3 Kambuzuma, Harare be and is hereby dismissed with costs.”
ISSUE
FOR DETERMINATION
I
am of the view that only one issue commends for determination. That
is:
Whether
or not the court a
quo
erred and misdirected itself by ordering the eviction of the
appellant from House Number 1138 Section 3, Kambuzuma without the
provision of an alternative accommodation
In
motivating the appeal, appellant's counsel submitted that despite
the appellant now owning her own house, she remained a dependant
under customary law and the respondent must provide her with
alternative accommodation if he is to evict her from the property in
question.
Counsel's
submissions were for the perpetual dependence syndrome under the
guise of customary law oblivious of the developments away from that
dependence syndrome for the emancipation and empowerment of women and
in
tandem
with the constitutional principles on gender equality.
Whilst
the customary law position is appreciated, it is absurd to expect
that the respondent should continue providing her with accommodation
when she now has her own house whose acquisition started when her
late husband was still alive.
Going
by her own contention that as a customary law wife she was unable to
act on her own it would mean that her joining the housing
co-operative was with the arrangement or blessing of her husband in
order that she would have her own house.
It
is trite that developments in the field of the law of succession have
been for gender equality and emancipation of women from the tag of
perpetual dependants.
Now
that the appellant has been empowered and has a house of her own it
is absurd and contrary to modern developments that she should cling
onto being considered a perpetual dependant who has to be provided
for by an heir to her late husband's estate.
This
perpetual dependence syndrome is anathema to modern society where the
drive is for gender equality.
In
any case the appellant admitted that for more than twenty–one (21)
years since her husband's death the respondent has provided her
with accommodation.
Before
she was given occupation of the New Mabvuku property the respondent
had never asked her to vacate the property in question.
Clearly,
in my view, the respondent has played his part and it is only proper
that the appellant vacates the property that she acknowledges now
belongs to the respondent.
The
duty to provide for dependants must be premised on the needs of the
dependant.
Where
a dependant has his/her own suitable accommodation they should not
insist on being treated as dependants or minors as appellant's
counsel argued.
The
turning point in this case is the fact that the appellant has
suitable alternative accommodation of her own.
The
cases that appellant's counsel sought to rely on pertained to
dependants who had no alternative accommodation of their own hence
the heirs were enjoined to provide alternative accommodation.
In
Kusema
v Shamwa
2003 (1) ZLR 395 (H) at 400E-G MAKARAU J (as she then was) stated as
follows -
“Generally,
the rights of widows at customary law to support and accommodation by
the heir of their late husband's estate has been long recognised by
these Courts. In this regard I refer to the case of Masango
v Masango
SC66/86 (an unreported judgment) where at p3 of the cyclostyled
judgment; BECK JA had this to say -
'In
the absence of making it possible for the appellant to find such
alternative accommodation for herself and her children as would be
reasonable in all the circumstances, I do not consider that the
respondent is entitled to insist upon their eviction from what is
admittedly now his house. To order their eviction without suitable
alternative provision having been made for their shelter would be
tantamount to sanctioning an avoidance by the respondent of his
customary law obligation to care for his father's wife and
children.'”
The
customary law position to provide accommodation to a widow must thus
be read in conjunction with her dependence on the late husband for
shelter.
Where
she has suitable accommodation of her own surely treating her as a
perpetual dependant who still needed to be provided with
accommodation is untenable.
It
is trite that a dependant is such because they do not have their own
accommodation or means of surviving hence have to depend on others
for provisions but when they become emancipated and have their own
houses they are no longer dependants.
In
the case of Vareta
v Vareta
1992 (2) ZLR 1 the court in dealing with the issue of provision of
accommodation for dependants held, inter
alia,
that although the applicant had a duty under customary law to support
his father's dependants, this duty did not necessarily include a
duty to provide accommodation for those dependants, especially if
there was a separate home in the communal lands where the dependants
could live.
The
important aspect to consider is the availability of suitable
accommodation elsewhere for the dependants.
In
casu,
it is common cause that by 2005 the appellant had a house to her name
which she has since been letting out for profit. It was never her
argument that that house was not suitable. The availability of this
house meant that appellant could no longer be considered as a
dependant of the heir for accommodation.
The
court a
quo
alluded to
ss10
and 11 of the Deceased Persons Family Maintenance Act [Chapter
6:03]
to buttress the point that the provision of support and accommodation
has to come to an end at some point.
The
court a
quo
can therefore not be faulted for granting the order for eviction as
clearly the appellant had suitable accommodation of her own. The
issue of dependence on the heir for accommodation had to come to an
end.
DISPOSITION
The
appeal has no merit. It was accordingly dismissed with costs.
GWAUNZA
DCJ: I
agree
MATHONSI
JA: I
agree
Gama
and Partners,
appellant's legal practitioners
Pundu
& Company,
respondent's legal practitioners
