FAMILY
LAW COURT – CIVIL TRIAL
CHIRAWU-MUGOMBA
J:
This
matter falls squarely in the realm of the law of succession in
Zimbabwe. The background is as follows:
On
the 24th of January 2014, the plaintiff issued summons against the
defendant seeking the following relief:
(a)
Eviction of the defendant and all those claiming through her from
House Number 1138 Section 3, Kambuzuma, Harare.
(b)
Payment of arrear rentals amounting to $17,280 for four rooms over a
period of six years.
(c)
Holding-over damages at $240 per month from date of summons to date
of eviction.
(d)
Costs on a higher scale if defendant opposes, otherwise normal costs.
In
his summons and declaration, the plaintiff made the following
averments:
He
is the owner of the Kambuzuma house (the property) by virtue of Deed
of Transfer no. 3302/94. The defendant was a wife to the plaintiff's
late father and she is staying at the property despite having her own
house as provided to her by her late husband.
The
plaintiff's father had three wives who include plaintiff's
mother, the defendant and another wife who stays in section 5
Kambuzuma.
The
plaintiff's late father had a plan to provide all his wives with
their own houses. The property in issue was for the first wife. The
third wife had a house provided for her in Kambuzuma and to the
defendant, he arranged that she joins a housing co-operative in
Mabvuku and as a result she was allocated stand number 10700 in New
Mabvuku.
The
plaintiff's father passed on before he could build a house in
Mabvuku for the defendant. Nonetheless, the cooperative has since
built a house for her which she is renting out.
She
has refused to move out of the Kambuzuma property. She is occupying
four out of six rooms.
In
her plea, the defendant averred as follows:
The
plaintiff inherited the house from the deceased estate of his late
father as an heir and thus he has an obligation to provide her with
alternative accommodation. No house was acquired for her in Mabvuku.
That house belongs to the Cooperative and payments were made since
2002 by the defendant's daughter. The defendant only uses three
rooms and this arrangement has been sanctioned by the Master of the
High Court.
At
an edict meeting held in 1994, it was ruled that the defendant and
the plaintiff's mother should continue staying at the house. As a
surviving spouse, defendant can continue staying at the property. If
the plaintiff wants the defendant to leave, he has to provide the
defendant with alternative accommodation. The defendant's stay is
legal and she has is not liable to pay damages to the plaintiff.
The
joint pre-trial conference minute reflects the following as the
issues:
1.
Whether or not the plaintiff still has an obligation to provide the
defendant with accommodation, when the defendant now has her own
house?
2.
Whether or not the defendant joined the housing cooperative in
Mabvuku at the instigation of the plaintiff's father?
3.
Should the defendant pay arrear rentals, holding over damages and
costs on a higher scale?
The
admissions were recorded as follows:
1.
The plaintiff inherited House Number 1138 Section 3 Kambuzuma in his
own right in May 1994.
2.
The plaintiff provided defendant with accommodation from 1994 to
date, a period of 21 years. 3. The defendant joined a housing
co-operative in Mabvuku, while her husband was still alive.
4.
The defendant was allocated House No. 10700 in New Mabvuku in 2005
and is now a landlady.
The
trial itself was very short.
The
plaintiff's evidence-in-chief was through his mother Efradia
Mhlanga acting through a power-of attorney since the plaintiff is
based in the United Kingdom.
She
told the court that the plaintiff is her son. When her husband passed
away in 1997 the plaintiff was appointed heir to the deceased estate.
In
support, she produced letters of administration dated the 15th of
November 1994. The letters indicate that one Richard Chimbari was
appointed Executor dative in the estate of the late Mwaoneka Isaac
Mhlanga.
The
defendant was married to the late Mwaoneka but she was never at any
point chased away.
The
plaintiff now sought eviction of the defendant since he was a
registered owner. In support, a copy of title deeds of the property
in the name of the plaintiff were produced.
The
defendant now stays in Seke and if the court authorises her eviction,
she can leave end of August.
Under
cross examination, the plaintiff's Efradia stated that the
defendant has a house in Seke that she built on her own though she
did not have any proof.
She
also stated that the defendant started staying at the Kambuzuma
property when their husband was still alive though she did not know
the exact date but it was in the 1990s.
The
plaintiff's legal practitioner confirmed that the claim for arrear
rentals and holding over damages was no longer being pursued.
On
her part the defendant told the court that the plaintiff is her
step-son. She married her late husband in 1991 in terms of the then
African Marriages Act [Chapter 238]. She however started staying with
him in 1980 at the property. Since then, she has not stayed at any
other place.
Her
husband left her at the property and she has nowhere to go.
Her
husband considered that at that time, their children were young.
She
implored the court to have mercy on her. Seke is her home where she
was born. The plaintiff had a duty to provide her with alternative
accommodation.
Her
house in Mabvuku was paid for by her child. When she joined the
cooperative in 1988 she was young and was working. She denied that it
was her late husband who encouraged her to join the cooperative. The
house was still in the name of the cooperative.
In
support of her contention, the defendant produced a rates statement
from the City of Harare which indicates the name of the ratepayer as
Kugarika Kushinga Cooperative.
Under
cross examination she conceded that although one of her children is
staying at the property, all payments to the cooperative and to the
City of Harare are made in her name.
From
the pleadings and the evidence led, the following is common cause:
1.
The plaintiff has real rights in the property through registration of
title in his name as the heir to the deceased estate of his late
father.
2.
The defendant has been resident at the property since her marriage to
the deceased.
3.
The defendant owns a property in Mabvuku.
4.
The plaintiff has not offered the defendant alternative
accommodation.
In
my view, the legal issue that arises is this - does the plaintiff
have the duty to provide the defendant with alternative
accommodation?
The
Law
The
legislature has made provisions for the immediate protection of the
family of a deceased person upon death. The first layer of protection
is through the provisions of the Deceased Persons Family Maintenance
Act [Chapter 6:03] specifically section 10 that reads as follows:
“10
Protection of deceased person's family and property
(1)
Notwithstanding any law, including customary law, to the contrary,
when any person dies, any surviving spouse or child of such person
shall, subject to section eleven, have the following rights —
(a)
the right to occupy any immovable property which the deceased had the
right to occupy and which such surviving spouse or child was
ordinarily occupying immediately before the death of the deceased;
(b)
the right to use any household goods and effects, implements, tools,
vehicles or other things which immediately before the death of the
deceased the surviving spouse or child was using in relation to such
immovable property;
(c)
the right to use and employ any animals which immediately before the
death of the deceased were depastured or kept on such immovable
property;
(d)
to an extent that is reasonable for the support of such surviving
spouse or child, the right to any crops which immediately before the
death of the deceased were growing or being produced on such
immovable property.
(2)
Any person who does an act with the intention of depriving any other
person of any right, or interferes with any other person's right,
that has accrued to that other person in terms of subsection (1)
shall be guilty of an offence and liable to a fine not exceeding
level six or to imprisonment for a period not exceeding one year or
to both such fine and such imprisonment.
(3)
A court convicting a person of an offence in terms of subsection (1)
may order the convicted person or any other person to restore any
property or pay any money which he has unlawfully acquired to the
person entitled thereto in terms of subsection (1) or to any other
person specified by the court, and any such order shall have the same
effect and may be executed in the same manner as if the order had
been made in a civil action instituted in the court.”
In
other words, at death, the salient features of the protection
afforded is as follows:
(a)
The protection is afforded to all persons be it under general or
customary law.
(b)
A surviving spouse or child is entitled to remain in occupation of an
immovable property that they were staying in immediately before death
provided that the deceased was staying with them or the deceased had
a right to occupy such property. This means if there is another
property that the deceased was not occupying but had a right to
occupy, the surviving spouse or child can also occupy such property
if they were staying there immediately before death of the deceased.
(c)
The surviving spouse or child have a right to use tools and household
goods including motor vehicles that they were using immediately
before death.
(d)
They also have a right to use animals and have a right to any crops
that were available to them immediately before death.
These
protectionist rights are taken very seriously such that any
infringement is a criminal offence (section 10(2)).
These
rights however are not in perpetuity.
They
“terminate upon completion of the administration of that portion of
the deceased estate to which those rights relate;” see section
11(b).
During
the era of the 'heir' an additional duty was placed on him (given
that the male primogeniture rule was predominant) to look after the
dependants of the deceased. He could not evict them without providing
alternative accommodation.
Although
a dependant was not defined, guidance could be gleaned from the
definition in section 2 as follows:
“'dependant',
in relation to a deceased, means —
(a)
a surviving spouse;
(b)
a divorced spouse who at the time of the deceased's death was
entitled to the payment of maintenance by the deceased in terms of an
order of court;
(c)
a minor child;
(d)
a major child who is, by reason of some mental or physical
disability, incapable of maintaining himself and who was being
maintained by the deceased at the time of his death;
(e)
parent who was being maintained by the deceased at the time of his
death;
(f)
any other person who -
(i)
was being maintained by the deceased at the time of his death.”
Registration
of property bestows real rights that are enforceable against the
whole world. In Takafuma v Takafuma 1994 (2) ZLR 103 (S) at
105H-106A, MCNALLY JA had this to say:
“The
registration of rights in immovable property in terms of the Deeds
and Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere
form. Nor is it simply a device to confound creditors or the tax
authorities. It is a matter of substance. It conveys real rights upon
those in whose name the property is registered.”
In
my view, the acquisition of real rights and the expected duty of the
heir reveals the tension between general law and customary law of
inheritance.
The
immediate question is: does the duty to provide alternative
accommodation end upon the acquisition of title and does it apply to
even those dependants who have accommodation already?
Application
of the law to the facts
The
two witnesses that is the plaintiff's mother and the defendant in
person appeared to be very simple women who did not appreciate the
legal nature of the dispute.
The
plaintiff's mother is also very elderly and it did not help matters
that the legal practitioner also seemed unsure of what evidence to
elicit from her. The defendant's legal practitioner also seemed to
be unsure of what questions to put to her. As a result, the entire
trial took about one and a half hours.
The
saving grace is that the question before the court was more legal
than factual.
In
casu, the plaintiff has acquired real rights in the property.
The
causa of the title is reflected in the title deeds as “...the
undermentionend property has been awarded to MIKE MHLANGA heir in
terms of the African Customary Law.”
Whilst
it is accepted that as heir, the plaintiff has a duty to look after
his late father's dependants (the defendant is one such dependant),
in my view that duty only applies in instances in which the defendant
has no other suitable accommodation.
In
the Masango case (supra), the court considered that there was no
other accommodation available for the widow and the dependants. The
property in Mupururu has been gutted by fire and the house in
Kambuzuma that was the deceased's was the only available property.
The court also rejected the submission that the widow and the
dependants move to Rusape to live with the deceased's senior wife
and other relatives that they had never lived with before. The
atmosphere in Rusape was one of animosity and that place could not
qualify as alternative accommodation.
In
casu, the facts are distinguishable in that the defendant does have
alternative accommodation in Mabvuku.
Whether
she acquired this property through the assistance of her deceased
husband is neither here nor there. The fact also that her child paid
for the property does not assist her case since she admitted that the
house is in her name at the cooperative and that all payments are
made in her name.
If
she moves to stay there, the atmosphere is not likely to be one of
animosity since it will be with her own child.
In
my view, insisting as the defendant did that she be provided with
alternative accommodation when she clearly has her own accommodation
will result in an absurd situation in which she will remain at the
property whilst interfering with the plaintiff's real rights.
It
will mean that for pre 1st of 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 of their own or houses, will still insist that the
heir should still provide alternative accommodation.
The
plaintiff has been prevented since the 23rd of May 1994 when he
acquired title to deal with the property as he sees fit.
I
am fortified in my view that even in terms of the Deceased Persons
Family Maintenance Act, particularly section 11(b) any protectionist
rights must come to an end.
The
defendant did not show that the estate is still active.
If
anything, the causa again in the title deeds refers to a first and
final liquidation and distribution account. This means that the
estate of the late Isaac Mwaoneka Mhlanga was fully wound up and
consequently the defendant cannot insist on staying at the property
for good.
Having
abandoned the claim for arrear rentals and holding over damages, the
plaintiff is entitled to an order for eviction of the defendant from
the property.
Costs
are at the discretion of the court.
In
my view, the defendant has unnecessarily put the plaintiff out of
pocket by clinging on to a defence that is not legally sustainable.
DISPOSITION
It
is ordered that:
1.
Judgment with costs is granted in favour of the plaintiff for the
eviction of the defendant and all those claiming title through her
from House Number 1138 Section 3, Kambuzuma, Harare.
2.
The defendant and all those claiming title through her are ordered to
vacate the premises described in paragraph (1) above within 14 days
of the date of this order failure of which the Sheriff of the High
Court be and is hereby empowered to effect the eviction.
Pundu
and Company, plaintiff's legal practitioners
Legal
Resources Foundation, defendant's legal practitioners
