This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.

At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms of the then Marriages Act [Chapter 37].

The parties initially contracted a customary law union. This union was subsequently solemnised on 14 June 1991. Up till then, the deceased was a widower, having been customarily married to Mary–Maria Mabwe in 1971. She died intestate in October 1987.

During the subsistence of this first marriage, the spouses acquired an immovable property known as House Number 7447, 6th Way, Glen View 7, Harare. The house was registered in the name of the deceased, Lloyd Chimhowa. The house was acquired in 1979. The spouses jointly contributed to the development of the Stand, including the construction of a dwelling house. Mary Maria died after completion of the house.

For one reason or another, her estate was neither registered nor administered as required by law. She was survived by her husband, Lloyd Chimhowa, and six children - the applicants in this matter.

The late Lloyd Chimhowa's second marriage to the first respondent was blessed with four children. The new family continued to reside at the house left behind by Mary Maria Mabwe. Also residing at the same address were the six children borne out of the deceased's marriage to Mary-Maria Mabwe.

When the late Lloyd Chimhowa died, the first respondent was appointed executor of the deceased estate. She did not last long in that appointment after the Master wrote to her accusing her of falsifying information in order to get authority to transfer estate assets into her name. For this, the Master threatened her with criminal prosecution.

Her appointment as executor was then revoked in favour of the second respondent.

The first respondent and the applicants were in bitter dispute as to the distribution of the matrimonial home. The parties eventually buried the hatchet and came to a mutually agreed distribution plan. It was agreed that the matrimonial home be jointly owned by the applicants, the first respondent, and her four children, in equal share. This agreement was referred to as 'the family tree”.

This agreement did not last long.

The first respondent opted out of it, and, in a letter addressed to the executor (the second respondent), dated 30 September 2008, she advised that she was resiling out of the agreement and demanded to be allocated what belonged to her and her biological children. She followed this with another letter dated 21 October 2009 in which she demanded to be allocated fifty per cent of the matrimonial home, with the other fifty per cent being allocated to the 6th applicant (Nyasha Masiyiwa Chimhowa) and her minor biological children.

On 4 August 2009, the executor submitted to the third respondent the first and final distribution account in terms of which it was proposed, inter alia, to award the immovable property (matrimonial home) No.7447–6th Way, Glen View 7, Harare, to the first respondent.

Despite the applicants' written objection to the distribution of the matrimonial home, the third respondent, the Master, confirmed the distribution, advising the applicants to seek review by this Honourable Court should they persist with their objections.

The applicants have proceeded accordingly by launching the present application. They contend as follows:

The third respondent did not take their objections into account, and, for that reason, he failed to apply his mind to the issues before him. Chief among the applicants reasons for objection was that the distribution did not take into account the fact that the matrimonial home also constituted part of their late mother's estate (Mary-Maria Mabwe's estate). This should have been taken into account in finalising the estate, they argue.

Secondly, the applicants were aggrieved, that, in compiling the inventory, the first respondent had left out the Rusape rural home, which their late father had specifically built for her. It is this rural home to which, in the opinion of the applicants, the first respondent would be entitled as she had not contributed to the acquisition and development of the Glen View matrimonial home.

It is further argued that the third respondent failed to recognise that he was essentially dealing with two estates. Maria-Mary Mabwe's estate, argue the applicants, would be entitled to fifty per cent of the matrimonial home. The balance of the value of the matrimonial home would have accrued to her late husband's estate. That is the value that the first respondent would have been entitled to.

The applicants admit that, at one stage, the first respondent had offered that they buy out her fifty per cent share. They were however unable to raise the amounts involved.

Further, the applicants aver, that, on a number of occasions, the first respondent had indicated that she wanted to sell the matrimonial property and that if she did so, the applicants, especially the 6th applicant (Nyasha Masiyiwa Chimhowa), who is disabled, would be greatly prejudiced.

For these reasons, the applicants seek an order setting aside the decision of the third respondent to award the matrimonial home to the first respondent. In its place, they seek the substitution of an order awarding the Rusape rural home to the first respondent with the applicants and the first respondent being jointly awarded the Glen View matrimonial home in equal share.

Alternatively, in the event that the matrimonial home is awarded to the first respondent, that the applicants, in particular the 6th applicant (Nyasha Masiyiwa Chimhowa), be granted the right to use the property and that the fourth respondent be directed to register a caveat against the property to prevent the first respondent from disposing of the property without the consent of the applicants.

The first respondent says she was initially amenable to sharing the immovable property with the applicants, but, because the applicants continually undermined her authority as mother, and also because there being ten people, the house was always overcrowded, she had changed her mind. She expected those of the applicants who had attained adulthood to move out.

They refused to so move out.

She said she had left out the rural home, in compiling the inventory, because although she regarded it as the family's rural home (Mary Maria Mabwe's hut is also situated there), she did not regard it as her matrimonial home as she hardly lived there, except for the odd weekend.

She denied that it was her intention to sell the matrimonial home in Glen View.

Above all, however, the first respondent argues that, at law, being the surviving spouse, she is entitled to the matrimonial home and that she is not obliged to co-own the matrimonial home with the applicants.

She also avers that had the estate of Mary-Maria Mabwe been registered it would have been handled under customary law and thus the house would have been excluded from her estate and awarded to her husband instead. It cannot therefore be argued that the house transcends two separate estates.

To that end, contends the first respondent, the Master's decision was sound at law and meets the justice of the case.

I believe, from the facts of this matter, that, the office of the Master followed the procedures outlined in terms of the Administration of Estates Act.

An edict meeting was held, attended by all stakeholders. When the first respondent failed to meet the required standards, the Master quickly intervened revoking her appointment as executor and replacing her with the second respondent. Various meetings were held among the parties with a view to getting them to agree on the way forward. They were unable to agree, and, naturally, the Master directed that the executor proceeds in terms of section 3A of the Deceased Estates Succession Act [Chapter 6.02].

In general, therefore, the Master and the second respondent cannot be faultered in the manner in which they handled this deceased estate. They were guided, ultimately, by the provisions of section 3A of the Deceased Estates Succession Act which provide that the surviving spouse of a person who dies wholly or partially intestate shall be entitled to receive, from the free residue of the estate, “the house or other domestic premises on which the spouses or the surviving spouse, as the case may be, lived immediately before the person's death and 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 para (a), where such house, premises, goods and effects form part of the deceased person's estate.”

Section 68F(b)(i) of the Administration of Estates Act [Chapter 6:01], on the other hand, provides, in relation to the estates of persons who die intestate, as follows:

“…, where the deceased person is survived by one spouse and one or more children, the surviving spouse should get –

(i) Ownership of, or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house.”

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 provisions such as section 3A of the Deceased Estates Succession Act, section 68F of the Administration of Deceased Estates Act, and the Deceased Persons Family Maintenance Act [Chapter 6:03].

In my view, the legislature intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons. This protection benefitted not just the widows but their minor children as well.

I do not perceive the legislature's intent to be to extend this protection and privilege to persons outside the marriage within which such property might have been acquired. To impute that kind of interpretation would lead to serious absurdities in the application of the law.

For example A marries B. They acquire jointly what may be termed matrimonial property. They have children. A, the husband, dies, and, in terms of the law, B, the wife and surviving spouse, is awarded the matrimonial property. Thereafter, B contracts another marriage with X, the second husband. She dies and X the second husband and surviving spouse, inherits the matrimonial property that B inherited from A, at the expense of A and B's children in that marriage.

Clearly, the children will have been disinherited of their parents' property.

They may, as a result, end up in the street, particularly if X sells the property and converts the proceeds to his own selfish ends.

In the result, the noble intention of Parliament, to keep the property within the family for the benefit of the surviving spouse and the children, will have been subverted.

During the course of hearing this application, an example was given of a surviving male spouse whose wife died leaving him to fend for their minor children. He was, in terms of the law, awarded the matrimonial house and movables. He retained the maid because it was in the interests of the children to keep them under the care of a person they were familiar with.

In time, a relationship developed between the maid and the widower, leading to marriage.

The widower dies and the maid, being the surviving spouse, is awarded the family's matrimonial home acquired during the subsistence of the first marriage - without the maid's contribution. Thereafter, the maid sells the matrimonial home, takes the money, deserts the deceased husband's children, and marries another man.

Again, in instances such as this example, the intention of the legislature is subverted.

For these reasons, I would conclude, that, the protection afforded surviving spouses is, in terms of inheritance, limited to those assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person whose estate is under distribution.

In particular, surviving spouses cannot, by right, claim any right to matrimonial property acquired outside their own marriage.

To allow them to do so would lead to the absurdities alluded to above. It would be against public policy and conscience to deprive the children of deceased persons the common law right to inherit from their parents merely because, at some stage, the surviving parent had remarried.

If that had been what Parliament intended to do it would have expressly so provided.

I am satisfied that Parliament intended only the consequences I referred to earlier.

In my view, it is of paramount importance that the legislature revisits the relevant legislation in order that its intention be expressed in clearer terms than is presently the case.

In the result, I agree with the submissions made on behalf of the applicants vis a vis the distribution of the immovable property in this estate. I agree that it is impracticable and indeed undesirable that the first respondent be awarded property acquired before her marriage to the deceased, Lloyd Chimhowa. At the same time, I recognise the first respondent's right to live at this property, which, to all intents and purposes, is also her matrimonial home. Her four minor children, being dependants of the deceased person, also have the right to live with their mother at that property.

In the result, I order as follows:

(1) That, the immovable property commonly referred to as House No.7447–6th Way, Glen View 7, Harare be and is hereby awarded to the first to sixth applicants (Alex Chimhowa, Cleopas Chimhowa, Viola Chimhowa, Pauline Chimhowa, Edmore Chimhowa and Nyasha Masiyiwa Chimhowa) in equal shares.

(2) That, the first respondent be and is hereby granted a life usufruct over the said immovable property.

(3) That, the final order of the third respondent, given under DR15/08, Estate Late Lloyd Chimhowa, be and is hereby amended to the extent of paragraphs (1) and (2) above.

(4) That there be no order as to costs.

Having conceded that she was chased away so many years ago, the first respondent could not show that she was still the late Clement Chitate's wife by producing a marriage certificate, or a copy thereof. Since it was her contention that their marriage was registered, and no divorce ever granted, it was incumbent upon her to show the subsistence of such a marriage...,.

The law is quite clear of the need to produce the marriage certificate, or a copy thereof, obtained from the relevant registrar of marriages.

The note from the City of Harare only shows she was, at some time in the past, married to Clement Chitate, it does not confirm that such marriage subsisted till Clement Chitate's death in 1992...,.

It may also be noted that in terms of the law obtaining at the time of Clement Chitate's death, the first respondent would not have been awarded the matrimonial home.

Counsel for the applicants conceded that the first respondent was properly appointed as executor. He also noted that the first respondent was appointed heir, but that was only for limited purposes in terms of the Administration of Estates Act [Chapter 6:01].

As regards beneficiaries, counsel for the applicants referred to section 68F(2)(h) of the Administration of Estates Act [Chapter 6:01]. In this respect, it was his submission that since the deceased was survived by six children they are all beneficiaries in equal shares. Counsel for the applicants further submitted that the applicants acquired vested rights in the estate upon the death of their father. These rights are then suspended pending compliance with certain procedures.

This is an application to set aside the first respondent's (the Master of the High Court) direction wherein the Master of the High Court allowed the third to fifth respondents to inherit from the estate of the late Hoyini Hilary Komati Bhila. The bone of contention being that the third to fifth respondents were born out of wedlock.

The applicant argued that all the property is under the umbrella of the matrimonial estate, and that during the subsistence of the marriage she was gainfully employed and contributed to the estate even though  the properties were not registered in her name given the prevailing legal situation then – prior to the legal age of majority which emancipated women to own property. She further argued that the third to fifth respondents are precluded from inheriting abinstestatois because they are children born out of wedlock. In summary, the issues which fall for determination in the circumstances of this case can be outlined as follows -

1. Whether or not children born out of wedlock can inherit abinstestatois from the estate of their father.

2. Whether or not the Borrowdale house falls within the free residue of the estate of the late Hilary Hoyini Komati Bhila.

3. Whether or not the first respondent's directions should be set aside.

Section 10 of the Deceased Estate Succession Act [Chapter 6:02] is to the effect that nothing in Part III shall affect, or alter, the law of Zimbabwe regarding inheritance abinstestatois.

The question is; what is the law as regards inheritance abinstestatois. The Constitution is the supreme law of the country. Section 2 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 reads –

“(1) This Constitution is the supreme law of Zimbabwe, and any law, practices, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.    

1. The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State, and all Executive, Legislative, and Judicial institutions and agencies of Government at every level, and must be fulfilled by them.”

The Master of the High Court is duty-bound to apply the law as espoused by the law-giver. In the present case, the Master of the High Court, the first respondent, accepted registration of the late estate Hillary Hoyini Komati Bhila, who, during his lifetime, was married, in a monogamous-type of marriage, to the applicant. The first respondent appointed the applicant as an executor. Upon being given information, which is not in dispute, that the applicant's late husband had sired three children (the third to fifth respondents) out of wedlock, the first respondent procedurally appointed a neutral executor dative, the second respondent. The second respondent, in the process of distribution plan attainment, included the three respondents.

The estate has not been wound up given the common cause facts.

There is no basis for arguing that the Constitution is not applicable, as this is viewed by the applicant as retrospective application of the law. The Constitution of Zimbabwe has always been the supreme law and applicable further in this case; the estate has not been wound up. The Constitution had immediate application as law on the date the Constitution became law.

The first respondent's directions do not only conform with the Deceased Estate Succession Act [Chapter 6:02] insofar as it provides for descendants but his directions also resonate with the Constitution of Zimbabwe insofar as the law should not discriminate. To seek to discriminate the third to fifth respondents on the basis of them being children born out of wedlock would not only be unfair and unjust but undemocratic, for it would amount to punishing children in an inhuman manner for an iniquity beyond their control; an “iniquity” by those who sired them, at no request by the said children – let alone their consultative input – would surely be discrimination which no civilised democracy would legally sanction.

Turning now to whether or not the Borrowdale house falls within the free residue of the estate; from the evidence filed, it is not in dispute that immediately before the late Hilary Komati Bhila passed on he was staying with the applicant at their Houghton Park House.

There is no argument that the applicant is the surviving spouse, and, in compliance with section 3A of the Deceased Estate Succession Act [Chapter 6:02] the applicant's entitlement to the matrimonial home and household goods and effects is unquestionable. This then leaves the other property forming the estate for consideration. It is for this property that the first respondent gave a directive that the house in which the applicant was not immediately staying in at the time of the death of her husband fell under free residue. This brings in the last issue of whether or not, in the circumstances of this case, the direction should be set aside for being in conflict with the legal position.

It is crystal clear from the Deceased Estate Succession Act [Chapter 6:02] that the matrimonial home, which is the house in which the surviving spouse was residing in immediately before the death of the spouse is inherited by the surviving spouse without debate. The applicant's matrimonial house or home, per evidence, is the Houghton Park house – which she was allocated. The same Deceased Estate Succession Act [Chapter 6:02], in seeking the redress of anomalities on inheritance abinstestatois, clearly couched to show descendants, parents, brothers, or sisters get a share of the free residue while the spouse also gets a share over and above the matrimonial assets. The legislature made inroads, giving guidance on the sharing ratio to cater for situations where an individual would have died without a will. The Constitution outlaws rules, conduct, practice, and laws which are discriminatory. Hence, the third to fifth respondents as offspring/descendants/children/progeny, albeit out of wedlock, are also entitled to a share of the free residue just like children/descendants or offspring born in wedlock.

The first respondent directed for the distribution plan to factor in the factual position of the additional three children. That cannot be viewed as a directive not based on existing law given the Constitutional and legislative provisions. The applicant's husband died intestate and, hence, the estate must be administered accordingly. The first respondent's directive, after the appointment of a neutral executor, was above board and in compliance with the laws of this country. Clearly, children, whether born in or out of wedlock, are beneficiaries in the estate of their biological father or mother who would have died intestate.

It is not in dispute that the deceased died intestate.

The legislative inroads on administration of estates cannot be ignored in dealing with the present application. The legal position, which is fairly settled, on inheritance will be of guidance, and equally the supreme law of the country, the Constitution of Zimbabwe Amendment (No.20) Act of 2013, international provisions, and case law, will be of assistance in the determination of the issues at hand.

Section 3A of the Deceased Estate Succession Act [Chapter 6:02] deals with inheritance of matrimonial home and household effects:

“The surviving spouse of every person who, on or after the first 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 may be, lived immediately before the person's death;

(b) The household goods and effects which, immediately before the person's death, were used in relation to the house on the domestic premises referred to in paragraph (a) where such house premises, goods and effects form part of the deceased person's estate.”

The applicant, as surviving spouse, was, in compliance with the Deceased Estate Succession Act [Chapter 6:02], given, as entitled to, the matrimonial home, goods and effects in Houghton Park where she and her husband were staying at the time of his death. The remaining estate falls in the basket of free residue to be determined in terms of the law.

Section 3 of the Deceased Estate Succession Act [Chapter 6:02] spells out the entitlement of a spouse of a deceased who dies intestate. The section, in specifying the entitlement of a surviving spouse also outlines the entitlement of descendants and parents, brother or sister. The use of the word descendant together with parent, brother, or sister in the relevant statutory provision cannot be given a blind eye. A descendant is defined in the Oxford Dictionary Thesaurus and Word Power Guide Indian Edition as “child, heir, scion, successor, family issue, offspring, posterity, and progeny.” A descendant, by no means, excludes a child by virtue of status of marriage. It is my considered view that a child, whether born out or in wedlock, is one's child, and, thus, a descendant. In outlining the entitlement of a spouse, and specifically mentioning the situation which will prevail where there is no descendant, the legislature clearly recognised the entitlement of both the surviving spouse and descendants. Section 3 of the Deceased Estate Succession Act [Chapter 6:02] reads -

“Subject to section four, the surviving spouse of every person who on or after 1^st April 1977 dies either wholly or partly intestate is hereby declared to be an intestate heir of the deceased's estate according to the following rules-

(a) If the spouses were married in community of property, and if the deceased spouse leaves any descendant who is entitled to succeed abintestato, the surviving spouse shall –

(i) Be entitled to receive from the free residue of the joint estate, as his or her sole property, the household goods and effects in such estate;

(ii) Succeed in respect of the remaining free residue of the deceased's share of the joint estate to the extent of a child's share or to so much as, together with the surviving spouse's share in the joint estate, does not exceed the specified amount, whichever is greater;

(b) If the spouses were married out of community of property and the deceased's spouse leaves any descendant who is entitled to succeed abintestato, the surviving spouse of such person shall -

(i) Be entitled to receive from the free residue of the deceased spouse's estate, as his or her sole property the household goods and effects in such estate;

(ii) Succeed in respect of the remaining free residue of the deceased's spouse's estate to the extent of a child's share, or to so much as does not exceed the specified amount, whichever is greater.

(c) If the spouses were married in or out of community of property, and the deceased spouse leaves no descendant who is entitled to succeed abintestato but leaves a parent, brother, or sister, whether of the full or half blood, who is entitled to succeed, the surviving spouse shall –

(i) Be entitled to receive from the free residue of the joint estate, or the deceased spouse's estate, as the case may be, as his or her sole property, the household goods and effects in such estate;

(ii) Succeed in respect of the remaining free residue of the deceased spouse's share of the joint estate or the deceased spouse's estate, as the case may be,  to the extent of a half share, or to so much as does not exceed the specified amount, whichever is greater.

(d) In any case not covered by paragraph (a), (b) or (c), the surviving spouse shall be the sole intestate heir.”

A reading of these provisions clearly maps the way for the sharing of property in situations where there are surviving spouses, descendants, parents, brother or sister. There is no insinuation in the legislative provisions that reveals where the deceased dies leaving descendants they ought to be excluded from inheriting a share of the free residue on the basis of being illegitimate.

The surviving spouse is entitled to the matrimonial house plus goods and effects, and, in the case of a civilly married spouse, he or she is entitled to a share in the joint estate and a further share in the free residue while descendants, parents, brothers, or sisters are also entitled to a share in the free residue. In the absence of all these descendants, parents, brothers, or sisters then the surviving spouse..., inherits as the sole intestate heir.

The applicant in this matter was married in terms of customary law to one Alice Mukowamombe in April 1986. In 2001, the applicant moved out of the matrimonial home and commenced to live with another woman as his wife. Alice Mukowamombe…, died intestate on 11 June 2007. She was survived by three children two of whom she had with the applicant. Following her death, the first respondent, who is her brother, registered her estate and was duly appointed as executor. The deceased estate comprised of an immovable property in Kuwadzana which she had purchased from the Ministry of Public Construction and National Housing by virtue of her employment in the Zimbabwe Republic Police. Following his appointment as executor of the deceased's estate the first respondent proceeded to administer the estate to the exclusion of the applicant. He prepared a distribution plan wherein he sought to bequeath the property to himself and the deceased's three children.

The applicant thus filed this application seeking an order that he be declared the deceased's surviving spouse and that the appointment of the first respondent as the executor, together with the distribution plan he had made, be set aside.

The application was opposed by the first respondent primarily on the basis that at the time that the deceased died the applicant was no longer her husband and that he was therefore not entitled to benefit from the estate.

The applicant testified that he married the deceased in terms of customary law in April 1986 and they had two sons. In December 1994 they purchased an immovable property, namely Stand 10382A Kuwadzana, from the Ministry of Public Construction and National Housing in their joint names. He stated that he never dissolved his marriage with the deceased although in 2003 he married a second wife as he is perfectly entitled to do under customary law. He continued to live with both women as husband and wife until the deceased's death in 2007. He stated that he was present at the deceased's funeral and provided all the traditional things like the "fuko" and two goats which were consumed at the funeral. In cross- examination, he stated that he left the Kuwadzana home in 2003 but he continued to look after his children by paying for their school fees and providing groceries. He stated that he would go to the Kuwadzana house about four times a month to be with the deceased and the children. He stated that he continued to have sexual relations with the deceased as husband and wife during this period. He reiterated that he never, at any stage, gave the deceased a divorce token (gupuro) in terms of customary law.

The first respondent testified as follows.

The deceased was his sister and was the first born in their family. At the time of her death she was living at Stand Number 10328A in Kuwadzana with her three children. When she married the applicant she had a child from a previous relationship. He stated that after the applicant moved out of the matrimonial home in 2001 he would visit the deceased and on all the occasions that he was there he never saw the applicant. The applicant did not visit the deceased after she fell ill and was in hospital. He also did not assist at her funeral. He stated that although he was present at the funeral he was not asked to perform any functions of a son-in-law nor did he render any financial assistance because he was no longer regarded by the family as married to the deceased. In cross examination the witness failed to explain the discrepancy between his testimony and the evidence in his opposing affidavit. In the opposing affidavit the witness had stated that the applicant did not attend the deceased's funeral, however, in evidence, and probably after having heard the clear evidence by Jaison Mapfumbate, he changed his testimony and conceded that he had been present. He, however, denied that the applicant had been asked to perform any rituals as a son-in-law. He, however, confirmed that no "gupuro" had been paid by the applicant to his sister as a divorce token but he went on to explain that it was not necessary as he had never paid lobola but only a small token called "tsvakirai kuno". When questioned by the court, he stated that the deceased had called him and their aunt and advised that she was no longer interested in the relationship but she had not given the applicant "gupuro". He also confirmed that once a person has paid" tsvakirai kuno" he is considered, at customary law, as a husband.

The evidence by both the applicant and the respondent and their witnesses showed that the applicant and the deceased separated between 2001 and 2003. At the time of their separation their relationship had deteriorated to such an extent that the applicant was sharing a bed with one of the children whilst the deceased slept on the floor. There were frequent quarrels and the deceased got to a point when she would deny the applicant food as she alleged that he was not supporting the family. It was also apparent that when the applicant eventually moved out there was no family meeting to resolve the dispute and neither party gave the other "gupuro." Whilst the applicant sought to show that they were still communicating and he would go and visit her from time to time it was clear from the testimonies of Hardlife Mukowamombe, Gladys Guri and Emma Mukowamombe, whom I believed, that this was not the position. The applicant and the deceased had clearly separated at the time of her death as the applicant did not even visit her when she was sick.

The late Elina Nyoni died on 14 July 1986 at Bulawayo. She was a widow whose husband died in 1967 and their marriage had been blessed with five (5) children, namely, Abias Zvavamwe born on 21 November 1957, Anna Mpofu born on 7 April 1959, Never Mpofu born on 10 May 1961, Albert Mpofu born on 5 November 1963 and Alice Mpofu, born on 3 June 1967.

All the male children of the late Elina Nyoni are now deceased but are survived by their own children who are the grandchildren of the late Elina Nyoni.

At the time of the death of her husband, the late Elina Nyoni had inherited Stand No.63816 Tshabalala Township, Bulawayo which is also known as House No.7547/8, Tshabalala, Bulawayo.  Clearly, that inheritance was not in accordance with Customary Law as an African woman was then regarded as a perpetual minor incapable of owning or inheriting her husband's immovable property.  Therefore, the late Elina Nyoni inherited the house from her husband by virtue of General Law which means that the family elected to be governed by General Law in so far as inheritance was concerned.

When Elina Nyoni died, her estate was not registered and nothing was done to wind up her estate until the year 2001. The first born son, Abias Zvavamwe, remained in occupation of House No.7547/8, Tshabalala, Bulawayo along with his family, which included his wife, Winfilda Zvavamwe, the appellant in this matter. Trouble started when the late Elina Nyoni's children, the first and second respondents, wanted to perform the traditional ceremony known as ''umbuyiso '' in Sindebele in 2007 which had not been performed from the time their mother died. The appellant, whose husband, Abias Zvavamwe, had died leaving her in occupation of the house, refused to let them perform the ceremony at the house arguing that she had since inherited the house from her husband. 

Prior to that, the estate of the late Elina Nyoni had been registered with the Additional Master as DRB No.1135/2001 with Annah Sibanda, the daughter who is the second respondent in this matter being appointed executrix.

A Distribution Plan, in terms of which the only asset of the estate, House No.7547/8, Tshabalala, Bulawayo, was to devolve to the surviving children and grandchildren of the late Elina Nyoni, was drawn up and submitted to the Additional Master. It is that Distribution Plan which the appellant contested and when the matter was heard by the court a quo it found in favour of the respondents and directed that the winding up of the estate must proceed in terms of that Plan.

Aggrieved by that decision, the appellant noted an appeal to this court on the following grounds:

''1. The learned magistrate erred in law in making an order that all children of the deceased were entitled to inherit in equal shares in terms of Amendment 6 of 1997 of the Deceased Estates Act (sic) when, in fact, the deceased died in 1986 and the Amendment does not have retrospective effect.

2. The learned magistrate erred in evicting the appellant upon 4 days notice of the order. Even if the order was correct, the appellant was still entitled to a reasonable notice period.

3. Appellant therefore seeks an order declaring that 2^nd and 3^rd Respondent (s) are not entitled to inherit from the deceased estate and the deceased son, Abias Zvavamwe, was the heir of the deceased estate in terms of the law at the time of her death and that as such the Appellant, as the surviving spouse of Abias Zvavamwe, is his heir and as such should inherit his estate.''..,.

The import of the appellant's argument is that her late husband, Abias Zvavamwe, was the first born son of the late Elina Nyoni and as such he was entitled, according to customary law, to inherit her estate in his individual capacity and to the exclusion of the other children, at the time of her death in 1986….,.

Counsel for the first and second respondents strongly argued that even if customary law was applied, the late Abias Zvavanwe was not entitled to inherit the estate on his own because according to traditional Shona customary law whatever property a woman acquired was regarded as her personal property which was distributed upon her death to all her children. It was only the property of the man which was inherited by the first born son.

I am of the view that this matter is capable of resolution by reference to section 3 of the Customary Law and Local Courts Act [Chapter 7:05] which sets out the choice of Law principles to be applied in a situation of this nature. That provision reads as follows:

''3. Application of Customary Law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires -

(a) Customary law shall apply in any civil case where -

(i) The parties have expressly agreed that it should apply; or

(ii) Regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed that it should apply; or

(iii) Regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

(b) The General Law of Zimbabwe shall apply in all other cases.

(2) For the purposes of paragraph (a) of subsection (1) - 'surrounding circumstances' in relation to a case, shall, without limiting the expression, include –

(a) The mode of life of the parties;

(b) The subject matter of the case;

(c) The understanding by the parties of the provisions of customary law or the general law of Zimbabwe, as the case may be, which apply to the case.

(d) The relative closeness of the case and the parties to the customary law or the general law of Zimbabwe as the case may be.''

In Chapendama v Matende & Another 1999 (1) ZLR 534 (H)…, CHINHENGO J stated;

''The recognition and exhortation that the law must adapt and be deliberately adapted to changing social and economic conditions is indeed a fundamental premise on which our jurisdiction in the area of customary law will develop as well as being a basis on which justice will be done and be seen to be done. The correct balance must, however, be struck between judicial law-making and legislation.  Where the law requires to be revolutionised, the function is largely that of Parliament to change it. But where, within the framework and spirit of the existing law, it is possible for the courts to interpret it in a purposive manner and render it more useful in changed circumstances, the courts will, by such purposive and progressive interpretation, achieve the same goal. The purpose of the law is to serve the people and meet their expectations.''

I find myself totally in agreement with that pronouncement.

In a case such as the present, where the legislature has legislated to give the courts the latitude to apply either customary law or general law having regard to the nature of the case and the surrounding circumstances, in my view, the courts should purposely refrain from applying customary law if its application would lead to an injustice. See Jengwa v Jengwa 1999 (2) ZLR 121 (H)…,; Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…,.

In my view, it is absurd for a first born son to seek to inherit the entire estate of his parent to the complete exclusion of his siblings. Other than the historical accident of being born ahead of others there is no other justification for such a situation. The law must be used to protect the other members of that family against the acquisitive tendancies of the first born son as clearly all of them are entitled to benefit from the estate. It was probably with that mischief in mind that the legislature introduced the amendments to the Administration of Estates Act [Chapter 6:01].

Happily, though, in this case, the issue is resolved by the fact that the late Elina Nyoni herself inherited the house from her late husband. She could not have inherited the house and taken transfer, as the papers show, on 1 February 1969, if the parties were applying customary law. The concept of the wife inheriting from her husband then only existed in general law. It must follow, therefore, that the family long agreed to apply general law principles of inheritance and not customary law. The late Abias Zvavamwe, therefore, was not entitled to inherit the house in his own right and did not so inherit. The house should devolve to all the children of the late Elina Nyoni including the grandchildren born of those children who have since passed away.

The executrix of the estate had already submitted a Distribution Plan approved by all concerned except the appellant. It is in accordance with that Distribution Plan that the estate should be wound up.

Accordingly, I make the following order; that

1. The appeal be and is hereby dismissed.

2. All the children of the late Elina Nyoni are entitled to inherit House No.7547/8, Tshabalala, Bulawayo in equal shares with the shares of those that are now deceased going to their respective children, the grandchildren of the late Elina Nyoni.

3. The matter is remitted to the Magistrates' Court for purposes of the completion of the winding up of the estate in terms of the Distribution Plan already prepared.

The applicant is a son to the late Jayison Mukuro. He is, however, not born of the first respondent. The first respondent is a surviving spouse of the late Jayison Mukuro. She was duly appointed executor of the Estate late Jayison Mukuro.

The first respondent, upon being appointed executor, proceeded with her duties in that regard. On 11 November 2002 she filed a First and Final Liquidation Account of the estate late Jayison Mukuro…,. In her distribution plan, in terms of the Administration of Estates Act [Chapter 6:01], she distributed the balance of the estate to herself and nine children.

The nine children included the applicant.

Each of the children was allocated a ninth share of the balance whilst she allocated herself Stand No. 596 Section 2, Kambuzuma, household goods and effects and the first sum of 200,000= Zimbabwe dollars. The applicant was apparently not amused with the manner in which first responded made the distribution. The applicant objected to the confirmation of the distribution account on the basis that his mother had not been included.

A dispute thus arose which required resolution.

Section 68E(1) of the Administration  of Estates Act [Chapter 6:01]…., states that-

“As soon as possible after drawing up a plan in terms of section sixty-eight, an executor shall submit it to the Master for approval.”

Section 68E(3)(c) of the Administration of Estates Act [Chapter 6:01] provides that -

“If the Master has reason to believe that one or more of the beneficiaries concerned have not agreed to a plan submitted to him in terms of subsection (1), the Master shall proceed to determine, in accordance with section sixty-eight F, any issues in dispute between the executor and the beneficiary or beneficiaries, and shall direct the executor to distribute or administer the estate in accordance with his determination.”

Section 68F of the Administration of Estates Act [Chapter 6:01] deals, essentially, with the manner the Master of the High Court is expected to proceed in resolving the dispute.

In casu, the applicant said his objection was premised on section 68F(2)(c)(i) of the Administration of Estates Act [Chapter 6:01] as amended by section 3 of the Administration of Estates Act No. 6/97. That section states that -

“The Master shall be guided by the following principles, to the extent that they are applicable, when determining any issue between an executor and a beneficiary in terms of paragraph (c) of subsection (3) of section sixty-eight E-

(c) Where the deceased person was a man and is survived by two or more wives, whether or not there are  any surviving children, the wives should receive the following property, in addition to anything they are entitled to under paragraph (b)-

(i) Where they live in separate houses, each wife should get ownership of or , if that is impracticable, a usufruct over, the house she lived in at the time of the deceased person's death, together  with all the household goods in that house;…,.”

The applicant stated that on 25 July 2007 he requested the first respondent, through the second respondent, to amend the First and Final Liquidation Account so as to award Stand No. 596 Section 2 Kambuzuma to Virginia Phiri, but the first respondent has not done so. It is apparently upon realizing that the second respondent had failed to get the first respondent to amend the distribution account that the applicant opted to approach this court for relief.

On 12 November 2009, the applicant filed the present application seeking an order that -

1. The first respondent be  ordered to amend the First and Final Liquidation Account  dated 11 November 2002 filed with second respondent DR 1746/2000 by including Virginia Phiri and allocating to her Stand No. 596 Section 2, Kambuzuma, Harare;

2. That the first respondent pays the costs of this application.

In his application, the applicant stated that his mother, Virginia Phiri, was, at all material times, living at 596 Section 2, Kambuzuma, Harare up to the time of deceased's death. The first respondent, as the second wife, was, at all material times living at 6 Mahwemashava, Zengeza 3, Chitungwiza. He therefore argued that in terms of section 68F of the Administration of Estates Act [Chapter 6:01].his mother should be awarded the Kambuzuma house as the late Jayison Mukuro's first wife.

The late Kenneth Kudzai Pamacheche was a polygamist. He had met the plaintiff in 1966 and a couple of years later he married her customarily. On 30 December 1977, they registered their union in terms of the then African Marriages Act. That marriage certificate is part of the record. When this dispute started, the validity of that marriage was questioned although it is not clear why. That issue, however, has not been placed before me and will not be addressed by this judgment which proceeds on the strength that the plaintiff and the deceased had a customary marriage. The marriage was blessed with six (6) children.

It would appear that in the month of December 1977 the deceased was in a marrying mood because on 21 December 1977, and unbeknown to the plaintiff, the deceased had registered yet another customary marriage in terms of the African Marriages Act [Chapter 238]; this time with the first defendant, a divorcee he had met much later. The two wives did not live together and it would appear that the deceased never introduced them to one another.

Sometime in 1980, the plaintiff and the deceased purchased House No.7 Cheryl Road, Eloana also known as Stand 75 Eleona Township of subdivision IB of Farm 1 of Matsheumhlope Bulawayo. They moved into the property where the plaintiff has remained to this day. From the papers, the first defendant was generally resident at her own house, No.24 Aylmer Road, Saurcetown, Bulawayo.

On 15 April 1992, the deceased and the first defendant upgraded their customary marriage to one in terms of the Marriage Act [Chapter 5:11]. Barelyy a year later, on 25 September 1993, the deceased tragically met his death in a road traffic accident. Problems then started which have seen the dispute being taken to the Customary Law Court, then to the Supreme Court which referred it to the fourth defendant for adjudication and finally to this court - a journey of almost 20 years. The matter was set down for trial on 10 May 2011 by all the interested parties and a Notice of Set Down signed by all of them, including the first defendant's legal practitioners, on 8 April 2011, is filed in the record. Notwithstanding that, the first defendant defaulted at the trial. At the commencement of trial, counsel for the second and third defendants submitted that although they had filed opposition, they were not contesting the plaintiff's claim and would abide by whatever decision the court came up with.

The plaintiff then gave evidence to the effect that she was customarily married to the deceased in 1968 and their union was blessed with 6 children. She resides at the house in dispute having moved into it when it was purchased by herself and her deceased husband in 1980. In the process of buying the house they had secured a loan from Beverly Building Society in the name of the deceased and the house was registered in the deceased's name. She was employed by Zimbabwe Textile Workers Union as a receptionist/typist and she basically took over the mortgage bond repayment, the capital sum of which was $14,000= local currency. As proof that she is the one who paid the bond she had bank deposit slips bearing her signature and they totalled well over 50% of what was paid to the bank. The said deposit slips were submitted to the fourth defendant in an effort to prove her claim to the house but over the years the fourth defendant indicated that those deposit slips were lost. At no time did the first defendant live in the house in question and she had absolutely nothing to do with it; did not contribute anything towards its acquisition and only surfaced after the death of the deceased. It is the plaintiff and her children who have always stayed at the house.

After the death of the deceased, Mr N Lang, then a partner at Ben Baron and Partners was appointed executor of the deceased's estate. When the dispute over the estate was dragging on the parties tried to negotiate an out of court settlement. Those negotiations resulted in a concrete agreement in terms of which the plaintiff and the first defendant agreed that the plaintiff was entitled to 50% share of the house by virtue of her direct contribution towards its acquisition, presumably on the strength of the Beverly Building Society deposit slips which have gone missing. The plaintiff testified that the parties had agreed, on the basis of the Supreme Court decision which declared the first defendant sole beneficiary of the estate, that the deceased estate owned the other 50% of the house. It was then agreed that the plaintiff would purchase that 50% from the estate and take over ownership of the house. In pursuance of that agreement, the house was valued by B.T. Bell Estate agents on 20 December 1999 at $650,000= local currency, and the plaintiff paid to the executor, through her legal practitioners, Messrs Lazarus and Sarif, the sum of $325,000= to purchase the 50% share belonging to the estate.

The plaintiff was unable to produce proof of that payment alleging that it is among those documents submitted to the fourth defendant, as she was laying a claim to the house, which documents went missing.

It is the plaintiff's view that in light of that background she is entitled to an order awarding to herself the entire house and directing that the third defendant should transfer the said house to her name….,.

I have already determined that the plaintiff is entitled to the house in dispute by virtue of having contributed to its acquisition and also paying for the other half of it to the executor. I am happy that such result accords with the current legal position, which admittedly, did not obtain at the time of the deceased's death.

The house was purchased when the deceased was married to the plaintiff in terms of what is now the Customary Law Marriage Act [Chapter 5:07]. The plaintiff lived in the house from 1980 and was living in it at the time of the deceased's death in 1992. At the time the house was purchased, the plaintiff's marriage was as valid as that of the first defendant and she and the deceased made their home at the house to the exclusion of the first defendant.

The current legal position is governed by Section 68 of the Administration of Estates Act [Chapter 6:01] which was introduced by Act No.16 of 1998. I did discuss the effect of those provisions vis-a-vis a customary marriage sitting together with a civil marriage in Ndlovu v Ndlovu and Others HB10-11….,  and concluded…, that;

“Where the deceased is survived by two wives, as in the present case, and those wives live in separate houses, each wife is entitled to receive the house that she occupied at the time of the man's death together with household effects in that house. Where the two wives shared the same house they are entitled to joint ownership. This is regardless of the status of the marriage, as long as, in the case of a customary marriage, it was entered into before the civil marriage.”

Admittedly, the provisions of the Administration of Estates Act [Chapter 6:01] referred to do not have retroactive effect but they have decisively dealt with the mischief that arose in casu.

In the result, I make the following order:

1. The plaintiff be and is hereby declared the owner of Stand 75 Eleona Township of Subdivision 1B of Farm 1 of Matsheumhlope, commonly known as No. 7 Cheryl Road, Eleona, Bulawayo.

2. The 3^rd Defendant be and is hereby directed to effect transfer of the said property to the plaintiff.

This is an appeal wherein the appellant prays for her appeal to be upheld with costs and the order of the court a quo set aside and replaced by the following:

“Applicant's application to be declared the sole surviving spouse of the late Gibson Rice is granted with costs.”

The court a quo had confirmed the respondent as the first wife of the deceased.

In her grounds of appeal, the appellant complained that:-

“1. The court a quo erred in law in finding that respondent is a surviving spouse in the estate of the late Gibson Rice when in fact the customary law union was dissolved in 1978 respondent remarried in another customary law union;

2. The court a quo erred in fact and in law in finding that there was undisputed evidence that respondent and the late Gibson Rice had reconciled and formalized a new customary law union;

3. The court a quo erred in law and in fact by making a finding that the respondent is the first wife when she was divorced in 1978 and appellant was married in 1992;

4. The court a quo erred in fact by failing to appreciate the argument presented by the appellant as to why she should be declared the sole surviving spouse; and

5. The court a quo erred in law and in fact in making a finding that the Legal Age of Majority Act 1982, did away with necessity of lobola and traditional rites in customary law marriages thus in his view there was no need for the parties who had reconciled to formalize their new union.”

The facts, which are largely common cause, are that the late Gibson Rice had been married to the respondent in an unregistered customary law union which was blessed with seven (7) children. The late Gibson Rice and the respondent dissolved their union in 1978. At the dissolution of the union the respondent got the matrimonial home, being House Number 1780, Mkoba 14, Gweru as part of the divorce settlement.

Thereafter, the parties went their separate ways.

The respondent got remarried to one Chakanetsa and thereby assumed her marital name Maritha Chakanetsa. The respondent had two children, namely, Shadreck and Stella, by Chakanetsa who unfortunately died in 1996. When the respondent sought to reconcile with Gibson Rice, in 1997, he had already remarried the appellant in 1992. This was another customary law union.

What was not clear from the record of proceedings is whether or not the respondent's endeavours to reconcile with Gibson Rice came to fruition. The witness called by the respondent, one Respine Kariri, was so biased and untruthful that her own legal practitioner ended up cross examining her and telling her not to tell lies. She was not worth to be believed and was of no assistance to the court. There was therefore no reliable and acceptable evidence to confirm that the reconciliation was formalized. There was no basis upon which the trial court concluded that the reconciliation was formalized. Similarly, there was no basis for the finding that the respondent was the first wife of the deceased. Assuming it had been proved that the reconciliation had been formalized she still would not have been the first wife. She had lost that status at the dissolution of her union with the deceased. Had the reconciliation been formalized she would have been the second wife to the appellant who was married in 1992 when she was still married to Chakanetsa. As already stated…, there is no acceptable evidence to hold that the respondent was re-married by the late Gibson Rice. The fact that he used to visit her at the house she was awarded at the divorce in Mkoba 14 does not mean that he had remarried her. He had seven (7) children with her. There was no reason to avoid her.

The respondent was staying with the deceased at Number 3102 Mkoba 16 until his death while the respondent stayed at her home. The appellant was the only surviving spouse at the time the deceased died. Her appeal succeeds.

At the close of submissions in this matter, we dismissed the appeal with each party to bear its own costs and said the reasons for doing so would follow. 

These are the reasons.

The late Greya Mhlanga was of Malawian origin. He died in 1983 and is survived by his two daughters, the appellant and the respondent, as his wife, Anna Makwelo, is also deceased. He left behind a house, namely, No.B281 Njube Township, which the parties are now fighting over.

The respondent approached the court a quo seeking an order that she is entitled to a share of the house left by her parents as the appellant was in occupation of the house and refusing to let her have her share. The appellant contested the action alleging that the respondent is not the child of the late Greya Mhlanga and was not entitled to a share of the house.

The evidence led in the court a quo is to the effect that the respondent had a short birth certificate in which her surname was recorded as Mhlanga. It got lost at a time when she had taken a national identity card using her married name of Mugore. She later divorced, and when she wanted to renew her passport she learnt that she was required to produce a long birth certificate, her identity card and citizenship certificate. Being of Malawian origin, she was required to renounce the Malawian citizenship. The respondent then took her grandmother and sister, the appellant, to stand as witnesses for her to enable her to obtain a long birth certificate. This was in 1996. It must have dawned to the appellant that she could take advantage of the respondent's problem with her particulars to disinherit her because she refused to stand as a witness for the respondent. It was not until their uncle, one Joseph S. Moyo, was released from prison that the respondent was able to obtain the birth certificate and much later the citizenship certificate. The respondent produced documents in the form of her birth certificate, which shows that her father is Greya Mhlanga; her certificate of registration as a citizen of Zimbabwe using the name “Maggie Mhlanga” and her national identity card showing the same. In addition, she called Joseph S. Moyo who testified in court that both parties are his nieces born of his sister and the late Greya Mhlanga. 

The court a quo believed this witness and the respondent.

Nothing was advanced on behalf of the appellant as to why the respondent was not the off-spring of the late Greya Mhlanga and why she should be disinherited. Clearly, the appellant tried to take advantage of a situation in order to disinherit her sister.

It was for these reasons that we came to the conclusion that the appeal is without merit.

I have stated that the status of Thwasile Ngwenya appears to be that of a child born outside wedlock under circumstances where Georgina Ngwenya (Nee Nleya) had a registered marriage with the late Willi William Ngwenya.

Due to the developments which have happened between the time the pre-trial conference was concluded and the time the trial started, all the parties, at the commencement of the trial agreed to revisit the joint pre-trial conference minute dated 21 January 2011. One of the developments is the passing on of Ms Susan Zvinoira and the appointment of Oliver Masomera as the executor of the estate and also as the first defendant. The following issues were therefore referred for determination at trial by this court;

1. Whether or not the plaintiff should be considered as a beneficiary of the estate of the late Cecilia Gunda.

2. Whether or not the Master of the High Court's consent to sell the property in issue was properly given in the circumstances.

3. Whether or not the sale of Stand No.5417 Glen Norah 'B' Township, Harare to the third defendant was valid and whether or not the third defendant was a bona fide purchaser.

4. If the sale of the property to the third defendant is not valid whether or not the sale should be set aside and the Deed of Transfer reversed….,.

I believe at this stage it is prudent to outline some historical facts to this matter which are largely common cause from evidence adduced from all the witnesses. This would make it easier…, to understand the analysis of the evidence and findings made.

The man from whom this seemingly unending dispute arises, Aaron Mukoki Gunda married his first wife and the wife gave birth to Anderson Gunda, Daison Gunda and Salome Gunda. He separated from, or divorced, this wife and in the early eighties (1980 – 81) he then married Cecilia Gunda (nee Chigidi). They had the second defendant, Tsitsi Gunda, on 21 March 1983, exhibit 2. The issue which is heavily contested is whether Ennety Gunda, born on 23 November 1980, is born to Aaron Mukoki Gunda's first wife, as is alleged by the second defendant and other witnesses or is born to Cecilia Gunda (nee Chigidi) as per her birth certificate, exhibit 1, and Anderson Gunda's evidence.

What is not in dispute is that Aaron Mukoki Gunda died in 1999 leaving the now deceased Cecilia Gunda as the surviving spouse. He was residing at Number 5417 Glen Norah 'B' Township, Harare with his family. The immovable property he left behind, Number 5417 Glen Norah 'B' Township, Harare has seemingly became not only a curse to his family but the source of a serious and tragic dispute within his family.

Briefly, this is what followed after his death.

A serious dispute arose over his estate – the house, between his surviving spouse Cecilia Gunda and his sons Anderson Gunda and Daison Gunda. The two sons did not want the house to be awarded to Cecilia Gunda, their stepmother. The dispute, which the second defendant described as acrimonious and violent, spilled to this court and CHINHENGO J dealt with the dispute which pitted Anderson Gunda and Daison Gunda on one side against Cecilia Gunda over this house. The house was awarded to Cecilia Gunda. Anderson and Daison Gunda appealed to the Supreme Court in case number SC293-03. Meanwhile, the parties were still staying in the house. On 15 September 2005 the Supreme Court dismissed the appeal by Anderson Gunda and Daison Gunda putting to rest their claim to the house which was awarded to Cecilia Gunda. Cecilia Gunda never lived to meaningfully enjoy the benefit of her legal victory. Hardly three months later, on 13 December 2005, inside that same house, in broad daylight, she was brutally murdered as her throat was slit open. Her stepson, Daison Gunda, was arrested for this heinous crime. The truth in that respect may never be known as Daison Gunda later died before the trial.

After the burial of Cecilia Gunda, her estate was registered with the fourth defendant by the second defendant who claimed to be Cecilia Gunda's only surviving child, DR265/06. On 29 March 2006, an edict meeting at which only the second defendant and the late Susan Zvinoira attended was held. Susan Zvinoira was appointed as the executrix dative of the estate of Cecilia Gunda and on 4 May 2006 was issued with Letters of Administration. The second defendant, Tsitsi Gunda, then made an application to the fourth defendant to be allowed to sell the only immovable property in the estate of Cecilia Gunda which is the house or property in issue. The fourth defendant issued such authority on 16 May 2006 which then culminated in the advertisement of the house in the Herald - exhibit 8 to which the third defendant responded to and buying the house on 22 May 2008. Meanwhile, after the demise of the late Cecilia Gunda in December 2005 her protagonists and stepsons, Anderson Gunda and Daison Gunda, had remained in occupation of the house in question. They probably believed that the pronouncement by the Supreme Court was now of no consequence as the person to whom the house had been awarded was no more. They were jolted on 3 October 2008 when the third defendant, through a letter, exhibit 6, advised them that he had bought the property.

Anderson Gunda and Daison Gunda responded to this by instituting proceedings in case no. HC740/09, on 20 February 2009, in which the defendants are the same as in the instant case. It is also important to note that the prayer they sought in HC740/09 is the same as in the instant case. The only difference between HC740/09 and the instant case is that Anderson Gunda and Daison Gunda are no longer the plaintiffs but Ennety Gunda is now the plaintiff. The pleadings in HC740/09 proceeded to pre-trial conference stage and Ennety Gunda unsuccessfully sought to be joined therein. After realizing the futility of their endeavours in HC740/09 Anderson Gunda and Daison Gunda, on 3 November 2009, withdrew the matter and tendered wasted costs. On 16 February 2010, CHITAKUNYE J issued an order by consent for the eviction of Anderson Gunda, Daison Gunda and all those claiming occupation through them from the house in question. This resulted in their eviction as per exhibit 13.

Meanwhile, when Anderson Gunda and Daison Gunda withdrew the case number HC740/09 on 3 November 2009, the plaintiff in the instant case Ennety Gunda issued summons out of this court two days later, on 5 November 2009, seeking the same relief sought by Anderson and Daison Gunda. Thus, when Anderson and Daison Gunda were evicted from the house on 15 March 2010 the third defendant failed to take vacant possession as Ennety Gunda, the plaintiff in casu, through her legal practitioners wrote the letter, exhibit 14, indicating that she was occupying the house in her own right as a daughter of Cecilia Gunda and that she had issued summons out of this court, which matter was pending. This explains why efforts to prosecute her failed as she produced exhibit 1 as proof that Cecilia Gunda was her mother.

Charles Mbunji Ndlovu met the applicant in 1980. At some point they commenced living together and had two (2 children, namely, Lebani Ndlovu, born in August 1984 and Wisdom Ndlovu, born in September 1986.  The two (2) did not solemnise their relationship in accordance with the marriage laws of this country.

On the 10^th April 1987, the deceased married the first respondent in terms of the Marriage Act [Chapter 5:11]. It would appear that this marriage is still in subsistence although the plaintiff alleges that divorce proceedings had commenced at the time of the deceased's death. There are no children born of the marriage between the deceased and the first defendant. At the time of the deceased's death, on 26 May 2002, he was living with the plaintiff at No.22 David Carnegie Road, Northend Bulawayo as the first defendant had left him much earlier and was now residing elsewhere.

The dispute arose after the plaintiff registered the deceased's estate in terms of Customary Law at the Magistrates Court (DRB 814/02) where the deceased's children from an earlier relationship, Prince Ndlovu, born on 16 September 1968, and Golden Ndlovu, born on 4 April 1970, were some of the people who deposed to affidavits confirming the plaintiff as the widow and heiress to the deceased's estate.

The first defendant registered the estate with the third defendant (DRB 1168/02) also claiming to be the widow and heiress to the deceased's estate.

In Case No. HC890/03, the plaintiff unsuccessfully instituted summons action seeking an order nullifying the marriage between the deceased and the first defendant and barring the first defendant from laying a claim to the estate. By order of 21 March 2005, NDOU J upheld an exception by the first defendant that no lawful grounds had been disclosed in that action for the relief sought which was dismissed with costs.

The plaintiff then instituted this action seeking a declarator that she is a spouse of the deceased in terms of the Administration of Estates Act [Chapter 6:01]; that she is entitled to inherit House No.22 David Carnegie Road, Northend, Bulawayo together with the household effects therein and that the said house be transferred to her name.

The first defendant filed opposition alleging that the plaintiff was not customarily married to the deceased and is therefore not entitled to inherit from the estate and that she, as the lawful wife, of the deceased should instead inherit from the estate.

It is common cause that at the time of the deceased's death, the first defendant and the deceased had long ceased to cohabit as husband and wife and were not in communication whatsoever after the first defendant deserted and pursued a separate life. It is also common cause that at the time of death, the deceased and the plaintiff were living together as husband and wife at No.22 David Carnege Road, North End, Bulawayo which was their matrimonial home.

It is pertinent to point out that at the trial the first defendant defaulted. The matter was stood down for a day to enable counsel representing the first defendant to locate her and bring her to court. On the following day, the 19^th January 2011, counsel representing the first defendant again appeared without the first defendant and told the court that she had elected and not to come to court. Therefore, I have not had the benefit of the viva voce evidence of the first defendant who elected not to appear and not to lead any such evidence.

The evidence of the plaintiff is to the effect that she met the deceased in 1980 and in 1982, the deceased approached her parents in Filabusi requesting a customary marriage through his go between, one Sikhova Nkomo, who was the deceased's uncle. When the plaintiff's parents agreed to meet the deceased and his go between, a meeting was arranged at their rural home in Filabusi which was attended, inter alia, by the deceased and Sikhova Nkomo from the Ndlovu family and the plaintiff (who was in an adjoining room during deliberations), the plaintiff's parents and her brothers Josiah and Joel Nyoni.

The deceased was asked to pay all the customary dues in the form of the introductory fee (sivulamlomo) of $20= and the acceptance fee (kangaziwe) in the sum of $200=. The deceased requested to be charged the bride price (lobola) and was duly charged in the form of four (4) head of cattle (converted to$400=) and the usual overcoat; blankets and tin. At a later date, the deceased and his go-between returned to pay the lobola and deliver the other items that had been demanded thereby completing the process of a customary marriage.

The plaintiff testified, further, that the deceased and herself commenced staying together as husband and wife and had their two (2) children aforesaid. Initially, as the deceased was employed by NRZ he was entitled to a company house and they stayed at a house belonging to NRZ, namely, No.4 Lovemore Crescent, Northend, Bulawayo. It was not until 1985 that they purchased their own matrimonial home, namely, No.22 David Carnegie Road, North End, Bulawayo. They then moved to that house which they were occupying when the deceased passed away. She had been admitted at Mpilo Hospital in 1987 as she had delivered their son, Wisdom, prematurely and this required that she stays in hospital for some time. When she was eventually discharged she returned home unexpectedly only to find that the deceased had been bringing the first defendant to spend nights at the matrimonial home. As a result, they quarrelled and because she was nursing a small premature baby, she decided to move out of the matrimonial home and stay with her sister in Tshabalala while she concentrated on bringing up her child. During the time that she stayed with her sister, the deceased would come to beg her to return to the matrimonial home but she would refuse. Sometime in 1987, she heard that the deceased had wedded the first defendant but when she confronted him, he initially denied it but later admitted. He, however, told her that they had quarrelled on the wedding day and the first defendant soon left and returned to her home. According to the plaintiff, she remained at her sister's house until 1993 when the deceased eventually apologised for his aberration. He and his go-between travelled to the plaintiff's rural home to formally apologise customarily. He was penalised for that in the customary way after which he was allowed to take his family back to his home. She maintained that even as they remained apart they continued to share conjugals and therefore remained husband and wife.

When she formally returned to the deceased in 1993, he was then working in Gweru and she and the children joined him there. The matrimonial house was then being rented out. It was not until 1996 that the deceased transferred to Bulawayo and the family moved back to the matrimonial home where they remained until the deceased passed away. At his funeral, she was the only recognised wife and was made to cover herself with a blanket in the traditional way, which signified that she was the widow mourning her husband. The deceased's family, again in conformity with tradition, requested her to put on a black mourning dress for a full year. All this was to recognise her as the widow of the deceased and throughout all this the first defendant was nowhere to be seen...,.

All the witnesses were credible and I have no reason to disbelieve them especially as the first defendant chose not to testify herself.  That evidence is to the effect that the deceased and the plaintiff were customarily married in 1982 and that marriage remained in subsistence until the deceased died in May 2002. Although they once had their problems and lived apart, the marriage was never dissolved. When the deceased died, he was living with the plaintiff at the matrimonial home - No.22 David Carnegie Road, Northend, Bulawayo - a home which they acquired together.

While the deceased contracted a civil marriage with the first defendant, they did not stay together for long and at the time of the deceased's death they had long gone their separate ways. There was no relationship whatsoever between them, except on paper. There may be other reasons why they did not have children but one cannot ignore the fact that they did not have much opportunity to do so.

The problem presented by this matter is governed by the provisions of the Administration of Estates Act [Chapter 6:01]. Section 68 of the Administration of Estates Act [Chapter 6:01] provides, in subsections (3) and (4), as follows:

''(3) A marriage contracted according to customary law shall be regarded as a valid marriage for the purposes of this Part not withstanding that it has not been solemnised in terms of the Customary Marriages Act [Chapter 5:07] and any reference in this Part to a spouse shall be construed accordingly.

Provided that such a marriage shall not be regarded as valid for the purposes of this Part if when it was contracted either of the parties was married to someone else in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse.

(4) A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for purposes of this Part even if, when it was contracted, either of the parties was married to someone else in accordance with customary law, whether or not that customary law marriage was solemnised in terms of the Customary Marriages Act [Chapter 5:07].

Provided that, for the purposes of this Part, the first marriage shall be regarded as a customary law marriage.''

By clear and unambiguous language, the legislature, in the exercise of its legislative powers, has seen it fit to not only recognise a customary marriage as valid for purposes of inheritance, it has also placed such marriage at par with one solemnised in terms of the Marriage Act [Chapter 5:11]. By parity of reasoning, a spouse under a customary marriage stands at the same pedestal as a spouse under the Marriage Act [Chapter 5:11].

In my view, the legislature has unquestionably raised the status of a customary marriage to the same level as a civil marriage. There cannot be any clearer language by which to recognise such a marriage. In my view, this was borne by a realisation that no matter how you try to ''civilise'' an African man, he shall forever remain entangled in the web of customary law and invariably shall have a customary wife somewhere in the background, even as he upgrades himself by marrying someone else by civil rites. It is those customary wives which the legislature sought to protect.

Regarding the respective rights of such ''spouses'', section 68F of the Administration of Estates Act [Chapter 6:01] is equally clear. It provides that where there is a dispute between an executor and a beneficiary the Master shall be guided by the provisions of subsection (2) which reads:

''(2) The master shall be guided by the following principles, to the extent that they are applicable, when determining any issue between an executor and a beneficiary in terms of paragraph (c) of subsections (3) of section 68E -

(a) ….,.

(b) …,.

(c) Where the deceased person was a man and is survived by 2 or more wives, whether or not there are any children, the wives should receive the following property, in addition to anything they are entitled to under paragraph (b) -

(i) Where they lived in separate houses, each wife should get the ownership of, or, if that is impracticable, a usufruct over, the house she lived in at the time of the deceased person's death, together with all the household goods in that house.

(ii) Where the wives live together in one house at the time of the deceased person's death, they should get joint ownership of or, if that is impracticable, a joint usufruct over, the house and the household goods in that house.''

In my view, these provisions are so clear as to admit of no ambiguity at all. Where the deceased is survived by two (2) wives, as in the present case, and those wives live in separate houses, each wife is entitled to receive the house that she occupied at the time of the man's death together with the household effects in that house. Where the two (2) wives shared the same house they are entitled to joint ownership. This is so regardless of the status of the marriage as long as, in the case of a customary marriage, it was entered into before the civil marriage.

It is only if the wives shared the same house that they can share the house. This is regardless of the existence of children.

The mischief that the legislature intended to address is not difficult to identify. For some time women married under customary law had faced ignominy of being chased out of their homes they toiled for with, and at times without, the husband who would have married a younger wife who invariably insists on a civil marriage. The law, as it existed before the introduction of Act No.16 of 1998, disinherited that customary law wife in favour of the new wife. In those circumstances, a woman married under the Marriage Act would then take over the house in which the customary law wife resided and which she toiled for without any contribution from the new wife. The above provisions ensure that the customary law wife benefits from her sweat while the new wife does the same.

The Administration of Estates Act [Chapter 6:01] is silent as to what happens when the new wife has no house belonging to the deceased common husband.

However, in my view, considering the mischief sought to be addressed, it was never the intention of the lawgiver that where the two (2) wives lived in different houses, the one without would be entitled to cross over and share the single house occupied by the other. That would defeat the whole purpose of the enactment.

I come to the conclusion that the plaintiff was a spouse for purposes of the Administration of Estates Act [Chapter 6:01] and is entitled to receive the house and the household goods in it, which she occupied, to the exclusion of the first defendant.

The time has come to declare, in no uncertain terms, that parties cannot invest in a paper marriage only to surface after the death of the other person they would have long abandoned to commence a new life. It's an unacceptable and extremely indecent habit which should be discouraged. If the marriage has failed it should be terminated to release the parties to start afresh.

Accordingly, I order as follows: that

1. The plaintiff, Jennifer Nyoni, be and is hereby declared the spouse of the late Charles Mbunji Ndlovu for purposes of the Administration of Estates Act [Chapter 6:01].

2. The plaintiff, Jennifer Nyoni, be and is hereby declared sole beneficiary of immovable property and improvements thereon known as 22 David Carnegie Road, Northend, Bulawayo, together with the household effects therein.

3. The 2^nd and 3^rd Respondents be and are hereby directed to do everything necessary to effect transfer of the said house and the household effects therein to the plaintiff.

4. The costs of suit shall be borne by the estate late Charles Mbunji Ndlovu.

The starting point is to take note of certain basic facts which gave rise to this dispute.

(1) On the 9^th of March 2006, the first respondent registered the estate of the late Peter Rodgers Sibanda with the third respondent.

(2) 1^st Respondent completed a Death Notice Form reflecting her as the widow. She indicated in that form that she had been married to the deceased in terms of the then [Chapter 37] at Tredgold Building on 15^th July 1988.

(3) First respondent did not disclose the existence of another wife - the applicant.

(4) First respondent completed an Inventory reflecting herself as the sole surviving spouse and House Number 5382, Luveve 4, Bulawayo as the single asset of the estate for distribution.

(5) First respondent gave her residential address as 61584, Pelandaba, Bulawayo.

From the onset, it is self evident that the first respondent intended to inherit House Number 5382, Luveve 4, Bulawayo to the exclusion of the applicant and her children.

The issues for determination by this court can be narrowed down to two issues, namely;

(1) Whether or not the applicant was customarily married to the deceased.

(2) Whether or not the applicant is entitled to House Number 5382, Luveve 4, Bulawayo.

(3) Whether the first respondent has any valid legal claim to the property in question.

WHETHER OR NOT THE APPLICANT WAS CUSTOMARILY MARRIED TO DECEASED

It is now settled that there are three types of marriages in Zimbabwe,viz:-

(i) Civil marriages contracted in terms of section 5:11.

(ii) Registered customary Law Marriages contracted in terms of [Chapter 5:07].

(iii) Unregistered customary law unions.

Unregistered customary law unions are those marriages where all the traditional and cultural rites of marriage are followed. They include the meeting of families from both sides (that is to say, the man's and the woman's sides). The payment of lobola whether in full, or upon agreed terms, usually completes the validity of a customary union. See the case of Chapendama v Chapendama 1998 (2) ZLR 18.

I am satisfied that on the submissions made the applicant was married to the deceased in terms of customary law. The union was blessed with five children and there is some evidence that the applicant's father assisted the couple in acquiring the house in dispute.

The first respondent argues that the applicant was simply a live-in girlfriend.

I am not persuaded by this argument. It has not been disputed that the applicant and the deceased lived together as husband and wife from 1970 and that five children were born of the union. It has not been disputed that the deceased left the matrimonial home in 1984 to live with the first respondent in Pelandaba. The deceased did not disturb the occupation of the applicant and her children at the Luveve house. Up to the time of his death, the deceased left the applicant occupying the Luveve house. The applicant had remained in continuous occupation of the property for more than 25 years and certainly the deceased had, during this period, allowed the applicant to remain in the premises whilst he was living with the first respondent at Pelandaba. To further indicate that the applicant was customarily married to the deceased and that the marriage was recognised by the deceased's relatives, upon the death of the deceased, the mourners gathered at the house in dispute to mourn the deceased. The applicant was the one covered with a blanket, culturally signifying that she was a bereaved spouse and was therefore the wife of the deceased. Further, when the body of the deceased was taken for burial, the applicant was seated in the hearse with the deceased's coffin covered with a blanket. There can therefore be no doubt that even the relatives of the deceased recognized the applicant as as customary wife. 

The court finds that the applicant established that she was customarily married to the deceased. I must observe here that in terms of section 68(4) of the Administration of Estates Act [Chapter 6:01] a civil marriage which was contracted after a customary law marriage shall be regarded as a customary law marriage. See the cases of Chinho v Chinho and Others 2006 (2) ZLR 164 H and Kusema v Shamva 2003 (1) ZLR 395.

The first respondent's argument that the applicant was merely a live-in girlfriend was a cheap ploy to woodwink the court. There is no doubt that when the first respondent registered the deceased's estate she deliberately excluded the applicant in order to ensure that she would be declared the sole surviving spouse entitled to inherit the Luveve house. The court notes here that the first respondent's intention was to misrepresent the facts and she almost succeeded until an objection was filed by the applicant.

WHETHER OR NOT THE APPLICANT IS ENTITLED TO HOUSE NUMBER 5382, LUVEVE 4, BULAWAYO

The next issue for determination is whether or not the applicant is entitled to inherit House Number 5382, Luveve 4, Bulawayo.

Section 68F(2)(c) of the Administration of Estates Act [Chapter 6:01] provides as follows:

“Where the deceased person was a man and is survived by two or more wives whether or not there are any surviving children, the wives shall receive the following property in addition to anything they are entitled to under paragraph (b) –

(i) Where they live in separate houses, each wife should get ownership of, or, if that is impracticable, a usufruct over the house.

(ii) Where the wives live together in one house, at the time of the deceased person's death, they should get joint ownership of or if that is impracticable, a point usufruct over the house and household goods in that house…,.”

In casu, the applicant lived at the Luveve 4 house, whilst the first respondent lived at the Pelandaba house. It is practical common sense, and in line with the provisions of the Administration of Estates Act [Chapter 6:01] aforesaid that each spouse should get ownership of the house they lived in at the time of the death of the deceased. This should also apply to the household goods and effects situate at both properties; these should go to the respective spouses.

I can find no logical reason for the first respondent to argue that she should get both the Pelandaba and Luveve houses because she is the one in possession of a registered marriage. The first respondent has not been candid about the status of the Pelandaba property. In case DRB 238/06 she provides her address as 61584 Pelandaba, Bulawayo. The marriage certificate, dated 15^th July 1988, and obtained at Tredgold Building, between the first respondent and the deceased reflects the residential address of the first respondent as 61584 Pelandaba, Bulawayo. Two things emerge:-

(a) At the time of the first respondent's marriage she was residing in the Pelandaba house back in 1988.

(b) At the time of the death of the deceased in 2005, the first respondent was still occupying the Pelandaba house.

The applicant has been in occupation of the house in dispute for more than 34 years now and knows no other home. The first respondent, on the other hand, resides at the Pelandaba house. It seems clear that if the first respondent were to be allocated the Luveve 4 house she would either sell the property or rent it out. This is because she already has a home of her own. The first respondent has not disputed that they owned a home in Figtree with the deceased. This means that she has an alternative home even if the Pelandaba property was not available. I would associate myself with the remarks in the case of Chiukura v Madondo and Others HC6297/08 where the learned judge held that:

“As the house was purchased during the subsistence of her (Applicant') marriage to the deceased, she was therefore entitled to inherit it.”

In the present matter, the established facts are that the parties were married in 1970. The house was acquired in 1978 when the applicant and the deceased were living as husband and wife. The deceased decided to move out of the house to live with the first respondent at Pelandaba in 1984. The applicant has been residing in the property ever since. She has clearly established that she is entitled to inherit the house as a surviving spouse of the deceased.

In the result, I would make the following order:

(1) The Applicant be and is hereby declared the lawful owner of House Number 5382, Luveve 4, Bulawayo.

(2) The 3^rd Respondent be and is hereby directed to distribute the estate under DRB 238/08 in terms of paragraph 1 of the order.

(3) The 1^st Respondent to pay the costs of suit.

The facts giving rise to this matter, which are common cause, may be summarized thus.

On 23 July 1982, the first applicant got married to one Ronnie Ngwenya in terms of the African Marriages Act [Chapter 238]. Her name appears in the marriage certificate as Debra Sibanda. Their marriage was blessed with the three children who are the co-applicants in this matter. The first applicant then separated with Ronnie Ngwenya in 1992 – after a period of 10 years. She left the matrimonial home. Thereafter, the parties went their separate ways for 16 years although they were not formally divorced. It is not known what the applicant did during the 16 year period of separation.  She only returned for the burial of Ronnie Ngwenya and claims to have met all the funeral expenses.

In the meantime, Ronnie Ngwenya contracted a marriage with Siphathisiwe Ncube, the second respondent, in terms of customary law but the marriage was not solemnized in terms of the Customary Marriages Act [Chapter 5:07]. All the formalities of such a marriage were done and observed. The second respondent accordingly qualifies as a spouse of the late Ronnie Ngwenya in terms of section 68(3) of the Administration of Estates Act [Chapter 6:01].

The second respondent lived with the deceased at House Number 6613 Nkulumane, Bulawayo from the time she got married to him in 1992 until he died on 24 April 2008. She looked after the deceased during the time he was sick until he passed on. She brought up the second, third and fourth applicants who had been left behind with their father by their biological mother. House Number 6613 Nkulumane, Bulawayo was acquired in August 1989 while the first applicant still lived with the deceased. When she departed for some unknown destination in 1992 the second defendant commenced to live with the deceased later that same year in October 1992 at the house. The house was renovated. The second defendant contributed towards the renovations to the house by paying back the money which had been borrowed to effect the renovations. The payments were made monthly until the debt was liquidated. The payments were jointly made with the deceased. She used to run a poultry project.

It is common cause that the second defendant had lived with the deceased in the said house for nearly 16 years. It is not known where the first applicant lived when she was not in Zimbabwe. She also appears to have been living in South Africa - even at the time the deceased died. She has not claimed, in her papers filed of record that she used to return home during the 15 years she was away. Neither has she claimed to have provided her conjugal obligations to the deceased during that period. On the contrary, she regarded the marriage as having come to an end from the time she left the deceased at the matrimonial home. In order to legally terminate the marriage, she instituted divorce proceedings in the Magistrates' Court shortly after her departure under case number CC934/92. Unfortunately, the matter dragged on and on from 1992 to the time the deceased passed on in April 2008.

Similarly, the deceased regarded the marriage as having been terminated immediately after the departure of the first applicant from the matrimonial home. He then on regarded the second respondent as his wife for 15 years. She was the one who was looking after his three children the first applicant had left behind and had a child with her. The deceased was anxious to have the marriage dissolved without any delay. By 24 November 1992 he had this to say to the first applicant's lawyers through his legal practitioners:

“Dear Sirs

Re: Debra Ngwenya vs Ronnie Ngwenya

Please be advised that our client wishes that this matter be finalized by January 1993.

We would be grateful if you were to contact your client with a view to arrange a trial date for that month.

Yours faithfully

Brassel Sigidi and Partners”

Unfortunately for both parties, the marriage could not be dissolved before the death of the husband.  The actions of the parties were those of the people who had divorced as can be seen from the foregoing.

The first applicant was not living at the house when the deceased died. She had last lived there some 15 years ago and only returned to attend the deceased's funeral. Whereas the second respondent lived in the house with the deceased for nearly 16 years until he passed on. She is entitled to receive ownership of the house and all household goods and effects thereat in terms of section 68F(2)(c)(i) of the Administration of Estates Act [Chapter 6:01].

The first applicant alleged that she had contributed towards the acquisition of the house but provided no proof to that effect. She was not a joint owner of the house. It is registered in the name of the deceased. She has no entitlement to the house as she cannot be regarded as a surviving spouse in the circumstances in terms of the Administration of Estates Act [Chapter 6:01].

The Master of the High Court filed a report in which he supported the granting of the application. 

He opined that the estate was administered in terms of customary law governing the administration of estates then i.e.1995. The law then required that a heir be appointed and that such a heir was entitled to inherit property in his personal capacity. He further commented that the second respondent was appointed heir and was subsequently issued with restricted Letters of Administration.

He also commented that the estate could not be registered again.

If the other siblings were aggrieved by the second respondent's decision then they should have followed the proper legal channels to challenge his actions. He concluded by stating that the Master's Office has no objection to regularize the sale in terms of section 120 of the Administration of Estates Act [Chapter 6:01] since cases where beneficiaries seek to renege from agreements of sale after benefitting, on the basis of non-compliance with section 120 of the Administration of Estates Act [Chapter 6:01], are on the increase.

He concluded by saying that he will abide by the decision of the court.

At the time of death of Phillip Munemo, where a person died intestate, his inheritance and succession was governed by the Administration of Estates Act [Chapter 6:01]. Section 68(2) of the Administration of Estates Act [Chapter 6:01] provides;

“If any African who has contracted a marriage according to African law and custom…, dies intestate, his estate shall be administered and distributed according to customs and values of the tribe or people to whom he belongs.”

The custom was that the eldest son of the deceased would be the intestate heir of his father's estate and would inherit the property in his personal capacity. See Magaya v Magaya 1999 (1) ZLR 100. This position changed with the coming into effect of the Administration of Estates Act No.6 of 1997.

In casu, the second respondent was the eldest son of the deceased and was the heir to his father's estate in terms of custom. He went on to be appointed heir to his father's estate and Executor of the estate. 

He therefore had the capacity to conclude the sale….,.

In view of the above, I will make the following order;

1. The sale of agreement entered into by the first respondent and the applicant on the 12^th of March, 1996 is hereby declared valid and binding on the parties.

2. The transfer of Stand 16648 Unit M, Seke to the 2nd, 3^rd and 4th respondent is hereby declared null and void.

3. The second respondent be appointed heir to the late Phillip Munemo and that he proceeds to transfer Stand 16648 Unit M, Seke to the applicant, within 14 days from the date of this order failing which the Deputy Sheriff is authorised to act on his behalf and transfer the said property to the applicant.

4. The respondents pay the costs of this application each paying the other to be absolved.

On 13 March 2014, I dismissed the above application and indicated that full reasons will follow. These are the reasons for the dismissal.

The applicants are children of the late Taruvinga Misheck Chikuwe, who died on 7 April 2006. The first respondent is the applicants' stepmother as she is the surviving spouse of their late father. The second respondent was appointed executor dative of the estate late Taruvinga Misheck Chikuwe….,.

The late Taruvinga Misheck Chikuwe, in his lifetime, and whilst still married to the applicants' mother, acquired an immovable property, namely, Stand Number 1970/12 Dendera Road, Dzivarasekwa 2, Harare. The applicants' mother died on 9 October 1990. In 2005, the applicants' late father married the first respondent in terms of the Marriages Act [Chapter 5:11]. Within three months of that marriage, the late Taruvinga Misheck Chikuwe ceded 50% of the immovable property to the first respondent. Thus, the first respondent became a joint owner or holder of rights and interests in the said property and this was on 30 September 2005.

Within six months of his marriage to the first respondent, the late Taruvinga Misheck Chikuwe died.

The second respondent was duly appointed executor dative. In the course of distribution of the estate, the second respondent awarded the first respondent the late Taruvinga Misheck Chikuwe's 50% share in the property. That meant the first defendant was now owner, or holder, of 100% of the rights and interests in the immovable property.

On 25 March 2013, the applicants filed this application seeking an order that: 

1(a) That 50% share of the immovable property commonly referred to as House No.1970/12 Dendera Road, Dzivarasekwa 2, Harare be awarded to the first to fifth applicants in equal shares.

Or, alternatively:

(b) That the first to fifth applicants be granted a life usufruct over the said immovable property.

2. That the final order of the third respondent, given under DR.457/09, of the Estate Late Taruvinga Misheck Chikuwe be and is hereby amended to the extent of paragraphs 1(a) or 1(b) above.

3. That there be no order as to costs.

In seeking the above order, the applicants argued that the first respondent had no right to be awarded their late mother's 50% share in the property; which property had been acquired some 26 years before the first respondent married their father.

The plaintiff sought to rely of the fact that Plot 8 was acquired as a result of the earlier acquisition of Plot 5 by his late father when the same was a widower.

Clearly, it is not in dispute the late Enest Chakanetsa Mazarura acquired Plot 5 through a Government Resettlement Scheme before marriage to the defendant. Enest Chakanetsa Mazarura later married Rhoda, the defendant, and the same Resettlement Scheme occasioned their move from Plot 5 to Plot 8.

Acquisition of property, if done above board, certainly assists the human race to live comfortably. It is what happens between the relations of the deceased which is worrisome and cause for concern. The intended comfort brought about by acquisition of material things invariably turns into volatile squabbles with the living claiming they have more rights than all the other people and claiming they were the closest to the deceased or departed.

The opposed application before me was occasioned by disagreement over a deceased estate. The applicant sought for an order that;

1. The marriage between the late Godfery Zakeo Mahenga and Eunice Agnes Chitambara be and is hereby declared null and void.

2. The customary union between Godrey Zakeo Mahenga and Christine Goremushandu be and is hereby declared valid for the purpose of winding up of the estate of the late Godfery Zakeo Mahenga.

3. The appointment of Eunice Agnes Chitambara as the Executrix of the Late Godfrey Zakeo Mahenga be and is hereby declared void.

4. The estate is hereby reopened for the proper appointment of the Executrix and redistribution of the matrimonial assets of the estate.

5. The transfer of ownership of Stand 525 Mabelreign Township, Harare and Subdivision 4 of Hippo Valley Estate, Chiredzi into Eunice Chitambara's name be and is hereby declared null void and that the Registrar of Deeds and the Ministry of Lands, Lands and Resettlement endorse on their respective registers that cancellation.

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

The applicant is the executrix dative of the estate late Juliet Munjeri. Juliet Munjeri was the late Bookwet Jonathan Munjeri's customary law wife married to him in terms of a registered customary law marriage.  Bookwet Munjeri was allegedly already married to Ella Munjeri, the first respondent, in terms of the Marriage Act Chapter 37 now [Chapter 5:11]. The record is not clear on the correct status of Ella Munjeri as it talks about the need for them to go back to court about custody of their children and difficulties in establishing whether or not she had properly divorced the late Bookwet Jonathan Munjeri. In his last will, the late Bookwet Jonathan Munjeri describes Ella Munjeri as his divorced wife.

The second respondent is the executor dative of the estate of the late Bookwet Munjeri. The third respondent is the Master of the High Court cited in his official capacity. The fourth respondent is the Registrar of Deeds also cited in his official capacity. The fifth respondent is the late Bookwet Munjeri's customary law wife married to him under an unregistered customary law union.

The applicant applied for condonation of the late noting of an appeal to this Court against the judgment of the High Court which declared Ella Munjeri the late Bookwet Jonathan Munjeri's surviving spouse.

Ella Munjeri prevailed in the High Court because it accepted her claim that she was still married to the late Bookwet Jonathan Munjeri, in terms of a monogamous marriage, at the time of his death. However, the way she conducted herself prior to his death, and after she registered his estate, tell a different story.  She left him between 1979 and 1980 and married a Mr Mupfumira with whom she had a daughter. That union was terminated in 1985. It was succeeded by her marriage to a Mr Dzova with whom she is still staying and had children with. She remained in that union till Bookwet Jonathan Munjeri died on 13 October 2002. On his death, she registered his estate as the surviving spouse but abandoned it when the late Juliet Munjeri sent, to the Master of the High Court, an affidavit challenging her status. On realising the challenge from Juliet Munjeri, Ella Munjeri chickened out of the race for appointment as executor of the late Bookwet Jonathan Munjeri's estate in the capacity of surviving spouse. Subsequent to Juliet Munjeri's, affidavit Ella Munjeri was, on 9 July 2003, in writing, invited to an edict meeting. She endorsed on the face of the letter of invitation the following:

“Please close the file. Thank you. Mrs E. T. Munjeri.”

The Master of the High Court's office thereafter invited her to edict meetings on two further occasions, on 7 August 2003 and 25 November 2003. On 17 December 2003, Ella Munjeri wrote a second letter to the Master of the High Court in which she said;

“I have decided to close this file. I am no longer interested anymore. Thank you for sending this letter to me. Thank You. Yours faithfully E. T. Munjeri (Mrs).”

The late Juliet Munjeri thereafter registered the estate and administered it till its distribution account was confirmed by the Master of the High Court on 1 September 2006. Ella Munjeri kept her silence till soon after Juliet Munjeri's death on 13 July 2013, when she resumed her claims to the late Bookwet Jonathan Munjeri's estate. During Bookwet Jonathan Munjeri's lifetime, Ella Munjeri wrote him letters complaining about his allowing their children to visit her at her matrimonial home with a Mr Dzova. She, on a number of occasions, reminded him of their divorce and her now being someone else's wife, and to go back to court where he had been granted custody if he no longer wanted the children's custody….,.

The applicant intends to raise the following issues on appeal;

1. That the court a quo erred by failing to appreciate that the 1^st respondent's application was not properly before it because the 1^st respondent had failed to seek a review of the 3^rd respondent's decision to confirm the final distribution and liquidation account in the estate of the late Bookwet Munjeri within thirty days from 1^st September 2006 as required by section 52(9) of the Administration of Estates Act [Chapter 6:01].

2. That the 1^st respondent had waived her rights through her two letters to the Master of the High Court.

3. That the court a quo grossly misdirected itself both on the facts and on a point of law in failing to appreciate that the 1^st respondent's own admissions that the marriage between her and the late Bookwet Jonathan Munjeri had been dissolved by the High Court, coupled with proof of a subsequent registered customary law marriage between the deceased and the late Juliet Munjeri, constituted sufficient evidence to prove that the marriage between the 1^st respondent and the deceased was lawfully dissolved.

4. The court a quo erred and misdirected itself in disposing of the matter on the papers filed by the parties without having regard to the Master's Report as envisaged by Rule 248(1)(a) of the High Court Rules and/or hearing oral evidence to clarify material disputes of fact.

In respect of the proposed first ground of appeal, the applicant applied for the order granted by the High Court more than six (6) years after the confirmation of the distribution and liquidation account. The applicant has an arguable case on appeal especially in view of Ella Munjeri's letters to the late Bookwet Jonathan Munjeri and the Master of the High Court and her silence till Juliet Munjeri's death.

The issue of waiver is also arguable entitling the applicant an opportunity to argue her case on appeal….,.

I am satisfied that this case should be allowed to proceed on appeal for the above-stated reasons, and for its importance as it raises serious questions on whether a spouse who abandons or divorces the other for over twenty-three (23) years and thereafter gets married to two other spouses can, on the death of the abandoned/divorced spouse, claim to be the deceased's surviving spouse and inherit from the abandoned/divorced spouse's estate.

This is an appeal against the whole judgment of the High Court of Zimbabwe, the operative part of which consists of the following declaratory order:

“1. The only lawful intestate beneficiaries of the Estate of the late Thomas Tavagwisa Zawaira are the children born of the late T.T. Zawaira's union with the late Mrs F. J. Zawaira.

2. The costs of suit shall be borne by the estate of late T.T. Zawaira.”

Background

The facts giving rise to the appeal are uncontested and are set out below.

The appellants are children born to the late Thomas T. Zawaira (the deceased) who died intestate on 5 September 2003. The deceased had sixteen (16) children. Of the sixteen (16) children, ten (10) were born out of wedlock and are the appellants in casu. The other six (6) children, including the first respondent, were born in wedlock. At the time of his death, the deceased was married to one spouse, a Felistas Jimisayi Zawaira. The marriage was solemnised in August 1958 in terms of the Marriages Act [Chapter 5:11].

Having died intestate, the deceased's estate was duly registered under DR988/07, with the second respondent being appointed as the executor dative to the estate. In executing her duties, the executrix lodged with the Master of the High Court a second and final Administration and Distribution Account in terms of which she distributed the estate equally to the surviving spouse and all the children of the late T.T Zawaira. After the account was duly advertised, in terms of the law, the first respondent lodged an objection with the Master of the High Court.

The nub of the objection was that the appellants, being children born out of wedlock, could not lawfully succeed intestate their father or father's relatives in terms of the general law:

“The Final Distribution per second and final Administration and Distribution Account currently lying for inspection awards all the property to all the late T.T. Zawaira's children and surviving spouse in equal shares. I understand the legal position to be that succession of an African, who contracts a civil marriage like my father, is governed by the general laws as opposed to customary law. I also understand that under general law (Roman Dutch) out of wedlock children cannot succeed ab intestato to their father or the father's relatives. The estate is only obliged to provide maintenance in terms of the Deceased Persons Family Maintenance Act to those out of wedlock children who may need it. I believe that any award to the 10 out of wedlock children that is not maintenance is incompetent and unlawful.”

However,owH the above objection was dismissed by the Master of the High Court, ostensibly on the basis that the Deceased Succession Act [Chapter 6:02] and the Deceased Persons Family Maintenance Act [Chapter 6:03] removed the distinction between children born out of wedlock and those born in wedlock and that, therefore, all children of the deceased had equal rights to inherit intestate.

Aggrieved by the dismissal of his objection, the first respondent approached the High Court seeking a declaratory order. The declaratory order sought was to the effect that the only lawful intestate beneficiaries of the estate of the deceased were his children born in wedlock. The application for a declaratory order was granted in terms already set out above.

Dissatisfied with this declaratory order, the appellants noted this appeal on the following grounds:

1. That the court a quo erred in coming to the conclusion that the late Thomas T. Zawaira was not subject to customary law at the time of his death and so erred for the following reasons:

(a) He had ten children born outside wedlock with different women.

(b) The children were not born of ten mothers,

(c) He gave all the children his name which name they were known by.

(d) The children were all known in the family and their parentage was never an issue.

(e) His conduct went, therefore, beyond mere adultery and was an indication of a clear connection with customary law principle and way of life.

2. The court a quo therefore erred under the circumstances in not coming to the conclusion that the presumption in favour of the applicability of general law had thus been rebutted and that the provisions of section 68 of the Administration of Estates Act accordingly applied with the result that the appellants could inherit from the estate of their father ab intestate.

3. The court a quo further erred in failing to construe the applicable statutory provisions in a way that represented a departure from the old common law position and so erred in placing upon the provisions a construction which puts them at variance with sections 18 and 23 of the Constitution of Zimbabwe and renders them void.

From the appellants' grounds of appeal, two issues stick out, that is;

(i) Whether the estate of the late Thomas T. Zawaira was subject to customary law or general law; and

(ii) Secondly, whether on the basis of statutory interpretation or Constitutional construction the general law outlawing intestate succession by out-of-wedlock children can be impugned.

Customary or General Law?

The first respondent takes the point that since the deceased was married in terms of the Marriages Act [Chapter 5:11], the general law must apply. The backbone of this argument stems from section 68G of the Administration of Estates Act [Chapter 6:01] which reads as follows:

“68G Determination of whether customary law applied to deceased person

(1) Section 3 of the Customary Law and Local Courts Act [Chapter 7:05] shall apply in determining the question whether or not customary law applied to a deceased person for the purposes of this Part:

Provided that it shall be presumed, unless the contrary is shown, that -

(a) Customary law applied to a person who, at the date of his death, was married in accordance with customary law; and

(b) The general law of Zimbabwe applied to a person who, at the date of his death, was married in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign country, even if he was also married to the same person under customary law.

(2) Where there is a dispute among the beneficiaries of an estate as to whether or not customary law applied to the deceased person for the purposes of this Part, the question shall be referred to the Master, who shall determine it in the speediest and least expensive manner consistent with real and substantial justice.”…,.

Thus, section 68G(1)(b) of the Administration of Estates Act [Chapter 6:01] introduces a rebuttable presumption that the general law of Zimbabwe applies to a person who, at the date of his death was married in accordance with the Marriage Act [Chapter 5:11].

According to the first respondent, therefore, it follows that the general law applies to the estate of his deceased father who was party to a marriage under the Marriage Act.

In terms of the general law, i.e. Roman Dutch Law, of intestate succession, only children born in wedlock are entitled to inherit intestate. Green v Fitsgerald 1914 AD 88. See MEYROWITZ, The Law and Practice of Administration of Estates, 5^th ed, Juta & Company…, who states thus:

“No blood relationship for purposes of succession is recognized between a man and his illegitimate children who cannot, therefore, succeed to him ab intestato.” 

See also, W NCUBE, Family Law in Zimbabwe, Legal Resources Foundation…, where the learned author states as follows:

“…, illegitimate children cannot succeed ab intestato to their father or to their father's relatives. Similarly, the father and his relatives cannot succeed ab intestato to the illegitimate children.”

Against this backdrop, the appellants argue that despite the deceased being party to a marriage in terms of the Marriage Act, customary law applies to the deceased.

In other words, the appellants seek to rebut the statutory presumption under section 68G(1)(b) of the Administration of Estates Act [Chapter 6:01]. Section 68G(1) of the Administration of Estates Act [Chapter 6:01] makes reference to section 3 of the Customary Law and Local Courts Act [Chapter 7:05] which provides:

“3 Application of customary law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires -

(a) Ccustomary law shall apply in any civil case where –

(i) The parties have expressly agreed that it should apply; or

(ii) Regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed it should apply; or

(iii) Regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

(b)  The general law of Zimbabwe shall apply in all other cases.

(2) For the purposes of paragraph (a) of subsection (1) –

'surrounding circumstances', in relation to a case, shall, without limiting the expression, include -

(a) The mode of life of the parties;

(b) The subject matter of the case;

(c) The understanding by the parties of the provisions of customary law or the general law of Zimbabwe, as the case may be, which apply to the case;

(d) The relative closeness of the case and the parties to the customary law or the general law of Zimbabwe, as the case may be.”

The import of this provision is clear. In determining whether customary law applies, as argued by the appellants, regard must be had to the nature of the case and the surrounding circumstances if it appears just and proper that it should apply or if the parties are to be presumed to have agreed that it should apply. Section 3(2) of the Customary Law and Local Courts Act [Chapter 7:05] provides a non-exhaustive list of factors that help in determining whether customary law is to apply to a party. The appellants aver that the fact that the deceased sired ten children outside marriage is one such factor or surrounding circumstance suggesting that customary law instead of the general law should apply to the deceased estate. Further, the appellants argue that each child born out of wedlock was given the deceased's name.

This, according to the appellants, suggests that customary law applies to the deceased.

Counsel for the appellants submitted that the court a quo erred by placing excessive emphasis on the nature of the contracted marriage rather than assessing the applicable law and made reference to the following portions of the judgement:

“In casu, it is common cause the deceased was married in terms of the Marriage Act…,. No other marriage is alleged with any other woman…,. Apart from siring the children, the deceased did not marry the women in question; it was not shown that he had expressly agreed that customary law should apply despite his marriage in terms of the Marriages Act. His mode of life was not shown to have been such as to infer that he was subject to customary law.”…,.

In my view, the submission and criticism, with respect, is justified.

Too much emphasis is placed on the existence of the civil marriage and the absence of customary marriages, which, of course, would have exposed the deceased to the crime of bigamy. The conclusion is then quickly drawn that in the light of the civil marriage and no other marriage, the applicable law should be general law. Furthermore, while it was the responsibility of the appellants to place before the court evidence of the surrounding circumstances which, when considered together with the nature of the case, would justify a departure from the presumption, the court below seems to have weighed whatever evidence there was in terms of whether it supported an express or implied agreement that customary law should apply. The court did not examine whether the nature of the case and the surrounding circumstances justified the application of customary law.

In other words, the court a quo failed to consider the provisions of section 3(1)(a)(iii) of the Customary Law and Local Courts Act [Chapter 7:05], which states:

“3 Application of customary law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires –

(a) Customary law shall apply in any civil case where –

(i)…,.;

(ii)…,.,; or

(iii) Regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;”

This omission was a material misdirection justifying interference with the finding of the court below. It is also a matter which this Court itself is in as good a position to address as the court a quo and therefore need not remit the issue for such consideration.

As submitted by the appellants' counsel, by siring ten children out of wedlock, the deceased evinced an intention to procreate more than could be facilitated by the single wedded wife and the contracted marriage was not a true reflection of the system of law he would have intended to apply to his estate. However, this submission was, in my view, wrongly dismissed by the court a quo thus:

“The respondents' major point in this bid was the fact that the deceased sired ten out of wedlock children with different women. They contended that that showed that he was subject to customary law. The respondents could not allude to any other factors. One may thus ask is the factor of siring children out of wedlock with various women peculiar to people subject to customary law?

The answer, in my view, is no…,.

In my view, the fact of having out of wedlock children, on its own, is inadequate to conclude that the deceased was subject to customary law at the time of his death.”…,.

With respect, the court a quo fell into the error of viewing, in isolation, the act of siring ten out-of-wedlock children, without taking into account the totality of the surrounding circumstances.

Counsel for the respondents compounds this error when making the point that what the deceased had engaged in with the other women was adultery and that even “repeated adultery with the same person(s) remains adultery. Adultery is not peculiar to Zimbabwean custom. Even in Biblical times adultery was existent.”

Counsel for the respondents then concludes that the appellant's submissions, if followed, would lead to many imponderables such as how far a party should have strayed from the civil marriage bed for such conduct to be adjudged as identification with customary law – a single instance or a dozen instances? Resulting in one, two or a dozen children? Instances of adultery are so numerous in the bourgeois marriage set-up that even the crime of adultery had to be abandoned through 'desuetude', that is, frequent non-prosecution! The criminal justice system was so overwhelmed it simply had to give up.  KARL MARX and FREDERICK ENGELS, in The Communist Manifesto, observed in this regard, thus:

“'Our bourgeois, not content with having the wives and daughters of their proletarians at their disposal, not to speak of common prostitutes, take the greatest pleasure in seducing each other's wives.'p50 KARL MARX and and FREDERICK ENGELS, Selected Works, Progress Publishers, Moscow, 1970.”

However, it is a misdirection to view, in isolation, aspects of the case such as the siring of many out-of-wedlock children or to mischaracterize the association with other women as 'adultery or repeated adultery' simpliciter.

When the case is looked at holistically, the out-of-wedlock children were children whom the deceased, during his lifetime, looked upon as being on par with his in-wedlock children; entitled equally to the use of his surname, acknowledgement by the family, and support. Had the deceased devolved his property through a will, he would have been entitled, at law, to treat all his children equally. The justice of this case supports the conclusion that customary law should apply as amply demonstrated by the nature of the case and the surrounding circumstances when viewed holistically.

What really is the nature of this case?

It is not about the protection of the institution of civil marriage or the preservation and devolution of marital property on succession. There are civil remedies to protect the marriage available to a partner faced with a bed-hopping spouse, such as suing for adultery damages and related remedies. 

The true nature of this case is about protection of children.

Of the ten out of wedlock children, at the time of instituting proceedings, three were minors and one suffers from a mental disability and the rest are majors. All the in wedlock children are adults.

Now, since under both customary and general law, the father of an out of wedlock child is liable to maintain such child and the deceased was indeed supporting such children during his lifetime, the justice of this case cries out for such support to be maintained and that customary law should be deemed to apply to the distribution of the deceased's estate among the children.

The unfair treatment of out of wedlock children under general law cannot be gainsaid.

Once upon a time, such law accepted the notion of children born out of wedlock being referred to as 'bastards' or 'misbegotten'. The stigma associated with the name 'bastard' moved a character in William Shakespeare's King Lear to observe thus:

“Edmund…,. Why bastard? Wherefore base?

When my dimensions are as well compact,

My mind as generous, and my shape as true,

As honest madam's issue? Why brand they us

With base? With baseness? Bastardy? Base,

Base?

Who, in the lusty stealth of nature, take

More composition and fierce quality

Than doth, within a dull, stale, tired bed,

Go to the creating a whole tribe of fops,

Got 'tween asleep and wake? Well, then,

Legitimate Edgar, I must have your land:

Our father's love is to the bastard Edmund

As to the legitimate: fine word, - legitimate!

Well, my legitimate, if this letter speed,

And my invention thrive, Edmund the base

Shall top the legitimate. I grow; I prosper:

Now, gods, stand up for bastards!” (Act I Scene II)

With the passage of time, the term 'bastard' was replaced with the word 'illegitimate' child. This categorisation of children born of parents not married to each other into a bracket of the so-called 'illegitimate children' still had the sting of stigma that was sought to be gotten rid of. The introduction of the word 'children born out of wedlock' is believed, by the law giver, to have taken away the stigma associated with the status of children born out of unmarried parents. In the South African jurisdiction, the blame has been shifted away from the children to the parents themselves as evident from the name, 'children born of unmarried parents.'

This account of the journey of children born out of wedlock exhibits the dynamic of ideas and the society they emanate from. Societies, by their very nature, evolve with time. Laws that govern a particular society must also evolve to meet the needs of that particular dynamic society….,.

In the case of ZIMNAT Insurance Company (Pvt) Ltd v Chawanda 1990 (2) ZLR 145 (S) it was held that having regard to the notion of justice and the interests of the litigants balanced against the community as a whole it was desirable to extend the dependant's action for damages for loss of support to a customary law wife in respect of whom the duty of support arises by virtue of legislation, and the following comment was made:

“What is offensive to one's sense of justice is that upon the wrongful killing of a breadwinner the position of a widow, who had married under customary law, should differ adversely from that of another, who had married according to civil rites, albeit both suffer the same kind of loss. As our law accepts customary unions, it should endeavour to secure equality to the parties thereto and discard the intolerable affectation of superior virtue (to borrow a phrase) inherited from the colonial past. To continue to exhibit a vestige of condescension and conservatism towards customary law unions ill-befits, and is repugnant to, the current and unyielding movement by the State to remove the legal disabilities suffered by African women.”…,.

In the above quotation, if reference to a 'widow married under customary law' were, mutatis mutandis, substituted with 'child born out of wedlock' these sentiments would apply with even greater force to the plight of out of wedlock children who would have lost a breadwinner in the form of their father when excluded from a share of his deceased estate.

Thus, viewed holistically and in the light of the march of history and social sentiment, the nature of this case demands that it would be just and proper that customary law should apply.

Gone are the days when such odious words as those of Emperor Justinian held sway, that:

“But those who are born of a union which is entirely odious to us, and therefore prohibited, shall not be called natural children and no indulgence whatever shall be extended to them. But this fact shall be punishment for the fathers that they know that children who are the issue of their sinful passion will inherit nothing.”

This is clearly so, because focus has inexorably moved away from punishment of the errant fathers to protection of all the children.

The “surrounding circumstances” which must be considered together with the nature of the case discussed above in order to decide whether it would be “just and proper” for customary law to apply include;

(i) The mode of life of the parties;

(ii) The subject matter of the case; and

(iii) The understanding and relative closeness of the parties to customary or general law.

The mode of life of the parties includes the lifestyle, habits, cultural leanings and social norms. The conduct of the deceased which has already been set out above unequivocally places him in the category of an adherent of, and believer in, norms, values and tenets of the African traditional society.

The subject matter of the case, i.e., dispute over succession, also clearly lends itself for resolution in terms of customary law and would be different from a dispute pertaining to a negotiable instrument, for example.

Therefore, the preponderance of the surrounding circumstances, including the understanding and relative closeness of the parties to either system of law, all point to the applicability of customary law being just and proper in the circumstances.

Once it is found, as has been done here, that customary law is applicable, the provisions of the Administration of Estates Act [Chapter 6:01], particularly section 68, automatically entitle all children, born in or out of wedlock, to be equal beneficiaries of the deceased person's estate.

Constitutional Perspective

The Constitutional arguments are being raised for the first time on appeal as being matters of law which the court a quo should have taken into account. 

The ground of appeal in this regard is that the court below should have placed a 'purposive' construction on the relevant statutes discussed above and that such interpretation should have led to a departure from the common or general law position in order to afford the appellants protection of the law.

This ground of appeal, apart from being raised too late in the litigation, is so badly formulated that it is almost impossible to appreciate what is being challenged.

Is the allegation that the court a quo adopted too narrow an approach in interpreting the relevant legislation? If so, how would a purposive interpretation have 'progressively' aligned the legislation to the Constitution when regard is given to the fact that the section 18 protection of law stipulations in the former Constitution were made subject to the provisions of the Constitution and that section 23(2)(a) specifically excluded from the general anti-discrimination provision the following matters: “adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”?

It was properly accepted by both counsel that the Constitution of Zimbabwe Amendment (No.20) Act, 2013 cannot be authority or the basis for disposing of this matter.

The deceased died in 2003, close to a decade before the inception of Constitution of Zimbabwe Amendment (No. 20) Act, 2013. The facts of this case arose before the promulgation of the current supreme law. It being trite that the Constitution does not apply retrospectively, any reference to the 2013 Constitution as authority for this case would be misguided and incorrect. This matter is to be dealt with in terms of the laws that existed at the time when the dispute arose.

Because of the poor formulation of the purported Constitutional challenge, and given the conclusion already reached on the applicability of customary law to this case, it is unnecessary to grapple with the Constitutional issues raised, such as they are.

Happily, though, the current Constitution has now addressed the issue of out of wedlock children through section 56(3), which, in very clear terms, abolishes discrimination on the basis of, among other things, custom and whether one is born in or out of wedlock.

Disposition

Accordingly, it is ordered as follows:

1. The appeal succeeds.

2. The judgement of the court a quo is set aside and substituted with the following: 

The late Korosi Matiyasi Soraidema (“the deceased”) was a businessman of repute who owned a shopping complex in Njube Township, Bulawayo, one of the pioneering suburbs in town, among other valuables.

He may have passed away on 15 September 2003, with his estate registered as DRBY 1435/03, and perhaps gone to meet his maker, but those that claim to have been closest to him during his lifetime have never allowed his soul to rest in peace. Brickbats have flown all over the place for over 15 years as a titanic battle over his estate rages on. The main antagonists pitted against each other have been Winnie Mpofu (“Winnie”), the plaintiff herein and Floppa Leah Mlavu (“Floppa”), the first defendant herein. Over the years there has been one litigation after the other over the control of the estate with alleged relatives of the deceased taking turns to disown one or other of the two (2) while supporting the other.

In the present matter, Winnie Mpofu instituted action against the defendants seeking a declaratur that Floppa Leah Mlavu is not a spouse of the deceased in terms of customary law or the Administration of Estates Act [Chapter 6:01], that she (Winnie) is the only surviving daughter of the deceased, and, as such, the sole beneficiary of the estate. Alternatively, in the event that the court finds Floppa to be a spouse, that she is only entitled to inherit Centenary Farm and all the property therein while she, Winnie, is entitled to inherit the remainder of the estate. As a further alternative, Winnie would like both of them to be declared joint heiresses to the estate entitled to inherit the whole estate in equal shares.

Winnie Mpofu averred, in her declaration, that she is a child born of the marriage between the deceased and the late Ettah Sibanda (“Ettah”), the two having been married to each other at Bulawayo on 18 June 1948 which marriage subsisted until the death of the deceased on 15 September 2003. Although the deceased is alleged to have contracted a customary marriage with Floppa Leah Mlavu, the latter has failed to prove such marriage only succeeding in producing an unauthenticated photocopy of the marriage certificate.

Winnie further averred that the deceased and Floppa had separated in 1975 until the death of the deceased. During that period of 28 years separation, Floppa had gone on to contract another marriage in terms of the Marriage Act [Chapter 5:11] with one Ronnie Brown Masiso on 7 February 1986 as a 'spinster'. They later divorced, but Floppa and the deceased never revived their marriage.

The action is contested by Floppa Leah Mlavu who denied that Winnie Mpofu is the child of the deceased or that Ettah Sibanda was ever married to the deceased. She averred that her marriage to the deceased subsisted until his death and although she once married Ronnie Brown Masiso by civil rites, that marriage was void, and, as such, it had no effect on the validity of her marriage to the deceased. She denied that Winnie Mpofu was entitled to inherit anything from the deceased's estate.

The issues for trial, as contained in the joint pre-trial conference minute drawn by the parties following a formal pre-trial conference held before a judge, are:

1. Whether Winnie Mpofu is a surviving child of the deceased.

2. Whether Floppa Leah Mlavu is a surviving spouse of the deceased.

3. What assets constitute the estate of the deceased?

At the trial, four (4) witnesses, including Winnie Mpofu, testified on behalf of the plaintiff while only Floppa Leah Mlavu gave evidence on her behalf as the first defendant….,.

Winnie Mpofu said she knew Floppa Leah Mlavu as an employee and treated her as a sister. She does not know when Floppa and the deceased upgraded their relationship to a sexual one and if ever they got married. She queried the alleged marriage because even the marriage certificate Floppa has produced is hardly legible and records her as a first wife when the deceased had already married twice before Floppa came. More importantly, the Clerk of Court, who is the custodian of all such marriages, has said there is no record of it. She produced a letter, dated 11 December 2009, written by the Clerk of Customary Law Court to Cheda and Partners, then representing her, which reads in relevant part:

“Re: Confirmation of Marriage

The above matter refers. We have made a check on our marriage records and we could not find the said marriage record which is said to have been contracted in 1974 between Floppa Leah Mlavu and Korosi Matiasi Soraidema.”

As Floppa Leah Mlavu had produced a copy of a certified copy of the marriage certificate, the witness' investigations took her to the office whose certification stamp appears on that copy, but was told that the “lawyer” could not remember what had transpired. Because of that, and the fact that there was no one who had witnessed the marriage, she formulated the opinion that Floppa Leah Mlavu was never married to the deceased.

She said that if Floppa had any relationship with the deceased such terminated as far back as 1975 when she left and never returned until the deceased's death. In fact, Floppa Leah Mlavu later married one Ronnie Brown Masiso at Bulawayo on 7 February 1986 in terms of the Marriage Act [Chapter 5:11].  When she applied for a marriage licence she did so as a spinster.

Copies of the application for a marriage licence made and signed by Floppa Leah Mlavu on 7 February 1986, under oath, in which she vowed that not only was she a spinster but also that “there (was) no lawful impediment to (their) marriage” was produced together with the marriage licence and marriage certificate.

While still on that marriage, I might as well mention that according to Floppa Leah Mlavu she indeed got married to Ronnie Brown Masiso as alleged but that marriage was fraudulent and a fake. Apart from the fact that she could not lawfully enter into a valid marriage by reason that she was already married to the deceased, she had assisted her nephew obtain a marriage certificate which he needed in order to apply for a house with the Municipality. She produced a divorce order as proof that the marriage in question was later nullified.

As I shall demonstrate later in this judgment, Floppa Leah Mlavu's explanation of the marriage with Ronnie Brown Masiso is far from satisfactory and completely unreliable.

Winnie Mpofu insisted that, as a daughter of the deceased, she is entitled, in law, to inherit from his estate but the same cannot be said about Floppa Leah Mlavu who has not proved that she is a spouse of the deceased….,.

It is surprising that Floppa Leah Mlavu could not secure evidence from any of the deceased's relatives to support her claim that Winnie Mpofu is not the daughter of the deceased or that she was lawfully married to the deceased. As hers was a customary marriage, at least she should have her own relatives who witnessed it to come and say it did take place. She produced none. She forlornly stood on her own, and, as a single witness, she had the onerous task of persuading the court that it is her version which should be believed. Her credibility in that regard therefore became very critical in tilting the scales in her favour.

Her version is that she was married to the deceased in 1974 at a time when he was not married to anyone. She did not know Ettah Sibanda and only met her after the deceased's death at the police station. She does not know if there is any relationship between the deceased and Winnie Mpofu and does not accept that she is the deceased's daughter because her surname was Mpofu which is not the deceased's surname. The deceased's totems are Sinyoro, Masikamoto, Mawongera. Mpofu does not feature there. She only knew four (4) children of the deceased; that is, Laisa, Daisy, Gift and Norman.  The existence of Winnie was never brought to her attention….,.

Regarding her marriage to Ronnie Brown Masiso, Floppa Leah Mlavu stated that it was fraudulent and designed only to help him, as a nephew, to apply for a house. The moment he got one, they quickly nullified it. Meanwhile, she continued being validly married to the deceased.

It is not easy to dismiss that marriage out of hand just like that. This is because in order for her to obtain a marriage licence, Floppa Leah Mlavu made an oath that she was a spinster and there was no impediment to the marriage with Ronnie Brown Masiso. If her present oath is to be believed, it would mean that she lied under oath on 7 February 1986 when she made the deposition in the marriage licence application.  On the other hand, if we believe her oath in the application for a marriage licence, it must therefore follow that she lied in court. Whichever way, her two (2) sworn statements are mutually destructive. 

It is trite that where a witness is shown to have lied under oath, then everything that the witness says should be rejected.

The logic for that is that a court of law may never know when the truth is told by such a witness, and, as such, it is safe to reject everything the witness says:Trinity Engineering (Pvt) Ltd v Karimazondo & Ors HH672-15….,.

The question therefore is where does that leave us?

I have already said that Floppa Leah Mlavu failed to prove the existence of a valid customary law union between herself and the deceased. She did not even enlighten the court as to where and when it may have occurred and failed to produce a single witness who witnessed it.

The marriage certificate that she produced was an uncertified photo-copy which was disowned by the Clerk of the Customary Law Court, the custodian of records of such marriages. The explanation that she gave for her failure to prove the customary law marriage was a dog's breakfast.

I agree with counsel for Winnie Mpofu, that Floppa Leah Mlavu has a propensity to misrepresent in an alarming way which is a trait that she has carried for a long time. In 1986, Ronnie Brown Masiso was accusing her of being “dishonest” even about the number of children she had and of appearing in the courts 'on serious criminal charges.' All this is contained in a court record whose contents Floppa was aware of and its contents were put to her under cross-examination thereby presenting her with an opportunity to explain her side of the story. She chose to downplay it and dismissed it as a non-event.

In light of the available evidence, I have no choice but to reject the evidence of Floppa Leah Mlavu that she was married to the deceased. Her conduct of marrying Ronnie Brown Masiso does not point to a person who was validly married to someone else - a businessman at that….,.

In terms of section 68(3) of the Administration of Estates Act [Chapter 6:01], a marriage contracted in terms of customary law is recognized as a valid marriage for purposes of inheritance.

If Floppa Leah Mlavu was married to the deceased, even without a marriage certificate, she would be a spouse for purposes of inheritance. She has not discharged that onus.

Section 68(4) of the Administration of Estates Act [Chapter 6:01] is an interesting provision. It reads:

“A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse, shall be regarded as a valid marriage for the purposes of this Part even if, either of the parties was married to someone else in accordance with customary law, whether or not that customary law marriage was solemnized in terms of the Customary Marriages Act [Chapter 5:07].

Provided that, for the purposes of this Part, the first marriage shall be regarded as a customary law marriage.”

Can that section be interpreted grammatically? 

The Supreme Court said, in S v Nottingham Estates (Pvt) Ltd 1995 (1) ZLR 253 (S) 256 E:

“The primary rule of interpretation is, of course, to endeavour to ascertain the intention of the law maker from an examination of the provision under consideration placed in proper context. A court will commence its inquiry by giving the word its grammatical signification, unless it is clear that the literal sense, when so applied, defeats the legislative intendment. In such event, a deviation from the ordinary meaning is justified, provided always that the word is sufficiently flexible to admit of another meaning by which such intention can be better effected.”

If the section is given its grammatical signification it means that a party who is married in terms of customary law, whether in the form of a customary union or a marriage solemnized in terms of [Chapter 5:07], is entitled to contract a marriage in terms of [Chapter 5:11], and, for purposes of Part IIIA of the Administration of Estates Act [Chapter 6:01] that marriage will be valid. The section used the phrase “either party”  meaning that a woman married in terms of customary law can contract a marriage in terms of [Chapter 5:11] with another man and such marriage shall be regarded as valid for inheritance purposes. She cannot, of course, contract a marriage in terms of [Chapter 5:11] if she is married in terms of [Chapter 5:07]. However, a customary union is not a marriage but is recognized for limited reasons, such as inheritance and maintenance.

It is only such a construction of section 68(4) of the Administration of Estates Act [Chapter 6:01] which does not lead to an absurdity.

In our law, a woman cannot marry two (2) different men. What that provision means, therefore, is that when she elects to contract a marriage with another man in terms of [Chapter 5:11], the latter marriage automatically terminates the preceding customary marriage.

That is where Floppa Leah Mlavu stands.

Even if she was married to the deceased in terms of customary law, such marriage terminated the moment she took marriage vows with Ronnie Brown Masiso by civil rites on 7 February 1986. So, even if such marriage was dissolved later, the act of dissolution could not have the effect of reviving what had already been terminated.

It is regrettable that there was absolutely no benefit to be derived from submissions made by both counsel in this matter regarding the pertinent legal issues arising from this dispute. Both closing submissions were spectacular by their lack of legal argument. Perhaps the litigants, self-acting, would have done better. I express that indignation because quite crucial legal issues arise from the dispute which needed to be exhaustively dealt with. For instance, the legal effect of Floppa Leah Mlavu's disappearance for almost three (3) decades before resurfacing after the deceased's death to lay a claim to his estate was not canvassed. So is the issue relating to the status of Ettah Sibanda who only died after the death of the deceased and had remained legally married to him until his death.

These are issues with legal implications on the rights of the present parties.

In Ndlovu v Ndlovu & Ors 2011 (1) ZLR 81 (H)…, I had occasion to express the view that:

“The time has come to declare, in no uncertain terms, that parties cannot invest in a paper marriage only to surface after the death of the other person they had long abandoned to commence a new life. It is an unacceptable and extremely indecent habit which should be discouraged. If the marriage has failed, it should be terminated to release the parties to start afresh.”

Floppa Leah Mlavu's situation is worse than that because not only did she abandon the deceased for decades to commence a new life, she also contracted a civil marriage. She then re-surfaced after the deceased's death, even without the dignity of attending his funeral, to lay a claim to his estate. 

Alice in Wonderland.

On the issue of whether Floppa Leah Mlavu is a spouse of the deceased for inheritance purposes, I have no hesitation in answering that question in the negative….,.

The fact that Ettah Sibanda survived the deceased triggered the application of section 3A of the Deceased Estates Succession Act [Chapter 6:02] regard being had to the fact that the intestacy of the deceased occurred on 15 September 2003 when he died without a will. Section 3A of the Deceased Estates Succession Act [Chapter 6:02] provides:

“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 may be, 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 where such house or domestic premises referred to in paragraph (a);  where such house, premises, goods and effects form part of the deceased person's estate.”

So, even if Floppa Leah Mlavu had also been a spouse, Ettah Sibanda would have been entitled to inherit….,.

Happily, it is common cause that Winnie Mpofu is, again, the only surviving progeny of Ettah Sibanda, and, as such, would still inherit from the latter's estate. That, therefore, resolves the conundrum posed by the failure to recognize the rights of Ettah Sibanda in the equation. 

I conclude, therefore, that Winnie Mpofu, as the only surviving progeny of both Ettah Sibanda and the deceased, inherits the entire estate….,.

In the result, it is ordered and declared that;

1. The first defendant, Floppa Leah Mlavu, is not a spouse of the late Korosi Matiyasi Soraidema under the law and is therefore not entitled to inherit from the estate registered as DRBY 1435/2003.

2. The plaintiff is the only surviving daughter of the late Korosi Matiyasi Soraidema and Ettah Soraidema (nee Sibanda), and, as such, is the sole beneficiary of the estate DRBY 1435/2003.

In this application, the applicant is the surviving spouse of the late Samson Maseko who died on 13 August 2013. 

The first to the fourth respondents are sisters of the late Samson Maseko; they, together with the latter, being siblings born of the late Ellen Sikwayara who died intestate on 20 March 1996.

In essence, the applicant seeks the re-opening of the estate of her late mother- in-law which was registered 18 years after her death as DRBY 692/14 and administered to her exclusion by the respondents. The main asset of that estate is a house, being Stand 44539 also known as K27 Mzilikazi, Bulawayo (the house), which, in terms of the first and final distribution account drawn by the first respondent, as executrix, and confirmed by the sixth respondent on 25 February 2015, was parceled out to the four surviving daughters of the deceased.

The applicant has brought this application arguing that after the death of Ellen Sikwayara, herself and her late husband, had developed the house at an expense because he was also entitled to inherit the estate of his late mother. Her late husband stood at par with the other surviving children of their mother. The first respondent has now proceeded to transfer the house into her own name after registering the estate behind her back and then excluding her and her children from benefiting from the estate. In fact, as the only son, her late husband was regarded as the heir.

All this happened at a time when the applicant had approached this court in HC2012/14 seeking an order compelling the registration of the late Ellen Sikwayara's estate.While opposing the application on flimsy grounds, the first respondent had gone behind her back to register the estate and to exclude her and her children completely. In the applicant's view, the first respondent acted fraudulently. Meanwhile, the fifth respondent had suggested, in his report, submitted in terms of Rule 248, that the parties should approach his office for registration of the estate without the need of a court order. It was on that understanding that HC2012/14 was removed from the roll on 9 June 2015 and the fifth respondent registered the estate as DRB344/15 unaware that the respondents had done so in the customary court.

The applicant would like the winding up of the estate under DRBY692/14, which dis-inherited her husband's estate, to be nullified and an independent executor appointed.

The application is opposed by the first respondent who denies any fraudulent conduct. She says the house did not belong to her late brother but her late mother. She confirms presenting the distribution account which excluded Samson Maseko's estate as he was dead at the time. Herself and her three sisters are the only surviving children of their mother and therefore are the only rightful heiresses to the estate. It is for that reason that the house was transferred into their four names as set out in the distribution account.

The main issue to be decided is whether the late Stanley Maseko inherited from his late mother's estate. If he did, then surely his estate, or is it the beneficiaries of his estate, are entitled to inherit from the estate of his late mother. If he did not so inherit, then the first respondent would be correct in distributing their mother's estate only to the four surviving siblings.

It is true that in Zimbabwe, statute has made a lot of inroads into the common law of intestate succession.  We now talk of the provisions of section 3A of the Deceased Estates Succession Act [Chapter 6:02] which allows the surviving spouse to inherit from his or her deceased spouse as well as section 3 of the Administration of Estates Act [Chapter 6:01], which replaced section 68(1) of that Act, the terms of which provided that if any African who had contracted a marriage according to African law or custom or, being unmarried, was the offspring of parents married according to that, died intestate, his estate was to be administered and distributed according to the customs and usages of the people to which he belonged.

What it means is that prior to 1 November 1997, when section 3 of the Administration of Estates Amendment Act 6 of 1997 came into effect, whether under Shona or Ndebele customary law, the heir to a deceased estate was the eldest surviving son of the deceased. See Chaumba v Chaumba 2002 (2) ZLR 51 (S)…,.; Magaya v Magaya 1999 (1) ZLR 100 (S).

It is a truism that in our law the intestate heirs are, in all cases, to be ascertained at the date when the intestacy occurs. See Swift v Pichanick N.O. 1981 ZLR 622 (S); Nyathi and Another v Ncube and Others HB123-11.

In the present matter, the intestacy of Ellen Sikwayara occurred on 20 March 1996 when she died without a will. This was before the new succession regime introduced by the Administration of Estates Amendment Act 6 of 1997 came into effect on 1 November 1997. Clearly, therefore, the applicant has an arguable case that the late Stanley Maseko may have inherited on his own in terms of the then prevailing law.

Thankfully, that is not the subject of the present inquiry, which is simply whether the late Stanley Maseko did inherit from his late mother's estate be it on his own or along with his sisters.

The first respondent has got it all wrong as her submissions are premised on who survived their mother at the time of the belated winding up of her estate in 2014. As already stated, Stanley Maseko died on 13 August 2013, seventeen (17) years after his mother died. The intestacy occurred when Ellen Sikwayana died in 1996 which is the time when the intestate heirs are determined.

The present case is therefore distinguishable from a situation where an estate inherits intestate from another estate which would occur when the intestate heir dies before the intestacy occurs.

In that situation the common law of intestate succession that a deceased estate cannot inherit ab intestate would apply. By the time Stanley Maseko died he had already inherited from his mother's estate. As such, his own estate is entitled to that inheritance.

Accordingly, it was incompetent for the respondents to share their mother's estate to the exclusion of the estate of the late Stanley Maseko. That construction is also supported by the Assistant Master, whose report, made in terms of Rule 248 of the High Court of Zimbabwe Rules, 1971, was submitted belatedly on 9 March 2016….,.

In the result, it is ordered that:

1. The winding up of the estate late Ellen Sikwayara, in terms of the Letters of Administration issued under DRBY692/14, is hereby declared null and void and is set aside.

2. The estate in question is re-opened for administration de novo.

3. The fifth respondent shall appoint an independent executor to wind up the estate in question.

The fact that Mishack Nyathi survived his wife, Kuyibisa Masuku, triggered the application of section 3A of the Deceased Estates Succession Act [Chapter 6:02] as well as the provisions of section 3 of the Administration of Estates Act [Chapter 6:01]. He was entitled to inherit her estate - and did inherit. 

“Whose house is it anyway” is indeed a common theme underlying disputes involving deceased estates in which the one person who could put paid to a dispute that centres on this question, is no longer there to assist with the answer.

The issue to be resolved in this trial is the claim of a purported swop between two brothers (one now deceased), and an alleged incomplete cession of the rights to one of the swopped properties that would have been in favour of the deceased had it been taken to its logical conclusion.

Whether the defendant was lawfully married to Isaac Chabveka

No convincing evidence was, in my view, put forward to support the claim by the first defendant that she was indeed a wife at customary law and not just a mistress at the time when the defendant married Liya in 1995 under a civil union. Notably, no relatives of the deceased or even herself or other persons who knew the deceased and who could confirm to the marriage, were brought to support the claim of a customary law union with the deceased which preceded the civil marriage to Liya. This was somewhat surprising given that lobola ceremonies, in practice, bring together a sizeable number of relatives, especially on the woman's side, to bear witness.

Also, as stated in relation to the observation on the nature of the deceased's marriage in an earlier case, when the first defendant became aware of the fact that the deceased had been civilly married, there is no evidence that shows that she tried to assert her status as a wife. Everything indeed points to her having taken advantage of the fact that the deceased's wife, Liya, had died, thereby bringing herself forward as a legal claimant to his estate and even so, relying on devious means. Even if she were given the benefit of the doubt of having been a customary law wife, thereby impacting on the deceased's civil marriage by virtue of section 68F(2)(c)(i) of the Administration of Estates Act [Chapter 6:01], the house in question did not fall to be inherited by the first defendant. The law is clear, in terms of that section, that each spouse in a polygamous setting is entitled to the house they were living in at the time of the deceased's death. The evidence suggests that it is Liya who resided there and the house would have accordingly gone to her and should legally form part of her estate. See W Pamacheche v E Pamacheche & Ors HB69-11; Nyathi & Anor v Ncube & Ors 2011 (2) ZLR 156.

However, as stated above, my finding, based on the facts placed before me, is that the first defendant was not the deceased's wife at customary law. Her son with the deceased, on the other hand, in the absence of any concrete evidence that he was not his son, is entitled to be a beneficiary as the Constitution does not permit for discrimination on the basis of being born out of wedlock. See section 56(3) of the new Constitution. In any event, even under customary law, a child born out of wedlock who has been acknowledged by the father is regarded rightfully as his child.

Her disposal of the house was not only irregular for the above reasons, but, more significantly, because she did not have the right to sell the house since the Letters of Administration, though regular at face value, had been improperly obtained. There was, in essence, already an executor in place whose letters had not been revoked….,.

6. Who is the rightful beneficiary of the estate of the late Augustine Katsiga?

It was agreed by counsel that the late Augustine Katsiga died intestate. The spouse of the deceased was incorporated as an heir by section 3 of the Deceased Estates Succession Act [Chapter 6:02]. This repealed the customary law principle that a wife could not inherit from her husband's estate. The other beneficiaries besides Gladys Mutasa, in the present estate, were the three minor children. The Stand in question was not the matrimonial home where Gladys Mutasa resided at the time of her husband's death. Gladys Mutasa and her children were thus each entitled to an equal share in the Stand. She could not legally dispose of the children's shares without the authority of this Court.

7. Whether the Stand should be transferred to the minor children

The net effect of my findings is that the estate of Augustine Katsiga should be properly administered by an executor appointed by the Master after a proper edict meeting attended by Augustine Katsiga and Gladys Mutasa's relatives. The appointment of the second defendant was invalid because of the misrepresentations that were made by the first defendant. The sale agreement was invalid. The first defendant does not have a share in the estate of Augustine Katsiga. She would also have no share in Gladys Mutasa's estate. The child's share that Gladys had in the Stand vested in her estate on her death. In terms of section 3 of the Deceased Estates Succession Act [Chapter 6:02] her children would be the beneficiaries in her estate of the child share she would receive from her husband's estate.

It would be necessary that the estate of their late mother be registered before the Stand can be transferred into their joint names. It seems to me, therefore, that the estates of both their parents should be administered first before they can inherit the whole Stand in their names….,.

1….,.

2….,.

3….,.

4. It is declared that the minor children, Kelvin Philbert Katsiga born 11 June 1992 and Tafadzwa Ignatious Katsiga born 8 March 1997and Augustine Tinotenda Katsiga born 4 December 2001 are equal and joint beneficiaries with their deceased mother, Gladys Mutasa, in the Estate of the Late Augustine Katsiga.

This is an application for a declaratory order to the effect that the applicant is entitled to two quarters of a third of the net estate of the late Existo Francis Hapaguti.

It is duly opposed.

The applicant is a surviving spouse of the late Existo Francis Hapaguti who died on 10 April 2009 in the United Kingdom. The first respondent is the executor dative in the estate late Existo Francis Hapaguti. The second respondent is cited in his official capacity.

Facts giving rise to this case were that in 1993 the late Existo Francis Hapaguti (hereinafter referred to as the late Existo) entered into a customary law marriage with Runyararo Violet Kadzunge; in 1995, he entered into another customary law union with the applicant, and, later, he married Charity Paradza under customary law.

The marriages were unregistered.

Later, the applicant and the late Existo went to live in the United Kingdom whilst the other two wives remained in Zimbabwe. Whilst in the United Kingdom, the applicant and the late Existo had their marriage solemnised in terms of the Marriage Act 1949 on 17 May 2003. It thus became a monogamous marriage. The late Existo had apparently been issued with a 'Non-Marriage Certificate' by the Registrar General of Marriages. It was on the basis of that certificate that he was able to have his marriage to the applicant solemnised in terms of the Marriages Act, 1949.

At the time of his demise, the late Existo owned immovable and movable assets in both Zimbabwe and the United Kingdom. The late Existo Hapaguti was survived by 11 children and three wives. Three of the children were with the applicant.

The late Existo was laid to rest in Zimbabwe, and, subsequently his estate was registered under DR 401/09. The first respondent was duly appointed executor dative of the estate late Existo Francis Hapaguti.

As the late Existo was already married to two other women when he purported to enter into a monogamous marriage with the applicant, it follows that, in terms of the proviso to section 68(4) of the Administration of Estates Act, the applicant was deemed to have been married in terms customary law. That subsection states that:-

“A marriage contracted according to the Marriages Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for the purposes of this Part, even if, when it was contracted, either of the parties was married to someone else in accordance with customary law, whether or not that customary law marriage was solemnised in terms of the Customary Marriages Act [chapter 5:07];

Provided that, for the purposes of this Part, the first mentioned marriage shall be regarded as a customary law marriage.”…,.

From the given dates of marriages, the applicant is the second wife as she married the late Existo in 1995. Runyararo Violet Kadzunge is the first/senior wife having married the late Existo in 1993.

As the applicant is ordinarily resident in the United Kingdom (UK), she appointed her cousin brother, G.M. Chivazve, and A. A. Musunga of Musunga and Associates, to be her agents to represent her in the administration of the estate late Existo. In this regard, she signed a General Power of Attorney appointing the two as her agents. See annexure THC3 dated 30 April 2009. G.M. Chivazve later terminated the services of Mr. Musunga, and, for all intents and purposes, remained as the sole agent.

The first respondent proceeded with the administration of the estate in terms of the relevant provisions of the law, and, on 7 December 2009, produced the first Interim Administration and Distribution Account (the Inheritance Plan (Annexure C)). The account was duly advertised and no objection was raised hence it was confirmed by the second respondent on 12 February 2010 in terms of sections 68D and 68E of the Administration of Estates Act [Chapter 6:01].

That Inheritance Plan outlined the late Existo's assets and how they were to be distributed to the beneficiaries. The plan also explains why some assets were outstanding and that those issues were still to be resolved by the executor.

In terms of annexure C, the applicant's entitlement in the estate is governed by section 68F(2)(b)(1) of the Administration of Estates Act [Chapter 6:01]. That section provides that:-

“(b) Where the deceased person was a man and is survived by two or more wives and had one or more children -

(1) One third of the net estate should be divided between the surviving wives in the proportions two shares to the first or senior wife and one share to the other wife or each of the wives as the case maybe.”

Annexure C further states that the other wives were considered and that provisions of section 68F(2)(c) of the Administration of Estates Act [Chapter 6:01], relevant to immovable assets and the respective household goods, was taken into account.

It is in these circumstances that, on 15 June 2012, the applicant filed this application for a declaratur.

The application is opposed. In his opposition, the first respondent raised some points in limine.

After a careful perusal of the application, I was of the view that a resolution of the points in limine will decide the matter.

The first respondent raised issues of this court's jurisdiction; the fact that though the application has been brought as an application for a declaratur, the applicant is, in fact, asking this court to review decisions made by the Master of the High Court; as the Inheritance Plan was confirmed, assets distributed to beneficiaries, the beneficiaries should have been cited, their non-joinder is fatal; the application is an academic exercise to the extent that the assets which are the subject of the relief sought have been passed from the estate, and, lastly, that the applicant is bound by the actions of her lawfully appointed agent….,.

Disinheritance

Another point worthy noting is the applicant's allegation that she was dis-inherited.

The letters by her agent show that there was no dis-inheritance but she was to inherit the UK properties. The Inheritance Plan shows that there were some outstanding issues to be dealt with including the UK properties which were allocated to the applicant as her inheritance. That Plan states that:-

“In this Distribution Account, Mrs. Stellah Hapaguti (nee Chivazve) has been left out on the understanding that she will inherit the estate's 50% share in the property at No.17 Oakhill, Letchworth Garden City, Hertfordshire, SG6 2RD in the United Kingdom. In this case, the executor will be appointing an agent to administer the United Kingdom estate. It should be noted that if the value of assets, cars included, exceeds the average share of inheritance, we propose that the excess be shared among the 14 beneficiaries including Mrs. Stellah Hapaguti.”

This is the share the applicant was to inherit.

The applicant seemed to labour under the belief that the UK estate should not be considered except those items she tendered - that was wrong.

The executor gave the applicant the opportunity to bring to the table the UK estate in a transparent manner by suggesting that an administrator be appointed to deal with the UK properties or, at the very least, she provided proof of the nature and extent of the estate in the UK, but, as the executor lamented, the applicant has not been co-operative. She would rather the nature and extent of the estate in the UK remained known to herself only.

In terms of the Administration of Estates Act, an executor is required to consider the value of all property, goods and effects, movable and immovable, of whatever kind belonging to the estate which he has been appointed to administer. The net estate the executor is to distribute, in terms of section 68F(2)(b) of the Administration of Estates Act, is the residue of an estate remaining after the discharge or settlement of the claims of creditors (section 68 of the Administration of Estates Act). It is thus the net estate of the entire estate - and not of the estate in Zimbabwe only. It was thus not disinheritance for the applicant to be awarded the UK estate. The misfortune is that the value of that estate was not known as the applicant has not deemed it necessary to provide the UK estate account and the distribution account by the relevant authorities in UK.

The applicant, through her agent, objected to the appointment of a UK-based agent to administer the UK part of the estate contending that it will only duplicate efforts and inundate the estate with more expenses. They suggested concentration be on the Zimbabwe estate. It was in that light that the applicant's agent and other beneficiaries reached the decision that the applicant inherits the UK estate.

I am thus of the view that from the above discourse, the application cannot succeed.

If, for some reason, one were to proceed on the merits of the order sought, I am of the view that such would still not succeed. The applicant wishes to be declared as being entitled to two quarters of a third of the net estates yet she is not the senior wife. In her papers, she did not deny the existence of the other women and the dates of their customary law marriages to the late Existo. Her contention seemed to be that because the late Existo obtained a Non-Marriage Certificate, and proceeded to marry her in terms of the Marriages Act 1949, she should rank first. Unfortunately for her the ranking of wives is not dependant on the type of marriage but on the dates of the marriages. In that regard, Runyararo Violet Kadzunge's marriage of 1993 ranks first and so she is the senior wife. As already alluded to, in terms of section 68F(2)(b) of the Administration of Estates Act, the senior wife is expected to inherit two shares whilst the junior wives inherit a share each.

In casu, as there were three wives, it means the one third share had to be divided into four shares. The senior wife, Runyararo Violet Kadzunge, inheriting two shares whilst the applicant and Charity Paradza inherited a share each. Those shares are of the third of the net value of the entire estate as defined in section 68 of the Administration of Estates Act and not of a part of the estate. This would thus include the assets in Zimbabwe and in the United Kingdom. I must emphasize that the sharing ratio is in terms of shares.

A further point to note is that the sharing ratio is not cast in stone as it is also subject to what the beneficiaries may decide to agree on.

It is in that light that the beneficiaries in this estate engaged in consultations and reached agreement that the applicant inherits the United Kingdom estate as reflected in the Inheritance Plan.

A declaratory order, as sought by the applicant, can, therefore, not be granted in the circumstances….,.

Accordingly, the application is hereby dismissed with costs on attorney- client scale.

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 the 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 dependant.

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 of the High Court 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 respondent 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 counsel 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….,.

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 of the High Court'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 of the High Court 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 of the High Court 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 of the Administration of Estates Act [Chapter 6:01], 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 of the High Court 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….,.

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 the 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.

FURTHER, AND IN ANY EVENT, THE APPELLANT HAD NO LOCUS STANDI TO DEMAND THE CESSION OF THE PROPERTY INTO HER NAME

I am aware that, in terms of section 3A of the Deceased Estates Succession Act [Chapter 6:02], a surviving spouse is entitled to receive, from the free residue of the estate, the house in which the spouses lived immediately before the death and such house formed part of the deceased's person's estate.

In this case, however, the estate of the late Simbarashe Shuro was never registered. There appears to have been an attempt to register it but the process of registration and appointment of an executor was not completed.

In these circumstances, therefore, the appellant cannot seek, as she does in her prayer, an order compelling the first respondent and the Masvingo City Council to cede the property into her name.

The applicant instituted the present proceedings in a bid to evict the respondent and repossess Stand Number 9919 Phase 3 Kuwadzana, Harare.

The respondent opposed the application on the basis that the applicant was not married to the deceased, one Junerose Phosa, and, as such, not entitled to inherit the deceased's half share in the property. The respondent further argued that the property in question, Stand Number 9919 Phase 3 Kuwadzana was not matrimonial home and that the applicant was not residing there, and, as such, could not inherit the property in terms of section 68F(2) of the Administration of Estates Act.

The brief background to this application has to be put into perspective.

The applicant was customarily married to one Junerose Phosa in 1986, per evidence filed of record. In 2000 the applicant and the deceased purchased a residential Stand, 9919 Phase 3 Kuwadzana, Harare. The property was duly registered in both their names; Annexure A refers, Deed of Transfer number 3230/2000.

In April 2010 the applicant's wife passed on and the applicant was appointed the Executor of the deceased estate per Letters of Administration by the Master of High Court. As a surviving spouse, the applicant was awarded half share of his wife's share and thus registered the said property in his name per Annexure B31/2014 transfer in terms of the Deceased Estates Succession Act [Chapter 6:02].

The respondent is a step grand-daughter to the applicant, in that she is a daughter of the late Junerose Phosa's daughter, one Violet Posi.

The applicant's claim is based on the common law remedy of rei vindicatio. The applicant, as the owner of the property, is entitled to recover his property from whoever may possess without his consent. The applicant, by virtue of being the registered owner, would have locus standi to vindicatio.

Our law is settled that an applicant seeking to rely on rei vindicatio must prove that;

1. He is the owner of the property.

2. That, at the institution of proceedings, the thing or property sought to be vindicated was still in existence and the respondent was in possession.

3. That the respondent's possession is without his consent or respondent has no right to retain possession of the property.

The cases of Unimark Distributors (Pvt) Ltd v EFR 94; Silverstondale (Pvt) Ltd 1999 (2) SA 986; and Stanbic Finance Zimbabawe v Chivhunga 1999 (1) ZLR 262 are instructive.

In Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 the court remarked;

“The owner may claim his property whenever found from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner. The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res; the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

I fully subscribe to the sentiments by the court in that case.

Once the applicant establishes he is the owner and that the property exists which the respondent is holding on to or possessing without consent or trespassing then he ought to have his rights restored.

In casu, it is evident the applicant has always enjoined ownership of the property in issue with his wife through sharing as both their names were registered per the initial title deed. Upon the death of his wife, following the registrations of the estate and his appointment as executor, the applicant became the sole owner of the property in question per the current title deed.

It is not in dispute that registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 20:05], passes real rights upon the individuals in whose name property is registered; Chapenyama v Chapenyera 2000 (2) ZLR 103 (S) underscored that registration of title conveys real rights.

The applicant in this case has the property registered in his name and that title deed is prima facie evidence of his ownership of the property. The applicant is, further, the surviving spouse of Junerose Phosa, and, as such, a recognised beneficiary under the Deceased Estate Administration Act [Chapter 6:01].

Even if the respondent's argument that the applicant, at the time of the death of his wife, was not staying at the matrimonial home, he cannot be stripped of his beneficiary rights. Section 68(F)2(d) of the Administration of Estates Act [Chapter 6:01] reads:

“Where the deceased person is survived by one spouse and one or more children, the surviving spouse should get;

(1) Ownership of, or, if that is impracticable, a usufruct of the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; and

(2) A share in the remainder of the net estate determined in accordance with the Deceased Estate Succession Act [Chapter 6:02].”

This section should not be read in the abstract to mean a spouse will be disinherited because he or she was not in the matrimonial house for one reason or the other at the time of death of the spouse. The legislative intention to protect surviving spouses in a polygamous situation should not be ignored and misconstrued in the manner projected by the respondent. Interestingly, it should be noted the respondent is not a surviving spouse or child of the late wife of the applicant.

Further, the respondent's possession of the property in question is not with the consent of the applicant. The respondent has no right to retain possession of the property for she has no legal basis for such retention. Her claims of hold over being that her grandmother, the late wife of the deceased, claimed 50% share which should have passed on to her mother has no legal standing given the applicant, as a surviving spouse, is entitled to inheritance when the spouse died intestate. The fact that the respondent's mother is a daughter to the applicant's wife does not change the applicant's entitlement as a surviving spouse and equally it does not clothe the respondent in casu with retention or contractual rights over the applicant who has real rights over the property, and who, further, is a surviving spouse entitled to inherit from the estate of his late wife.

It is clear from the foregoing that the applicant, who is the owner of the property in question, is, without consent, being deprived of his property by the respondent which has no legal basis to claim retention of the property.

There is no merit in the respondent's opposition of the applicant's relief. It is clearly calculated with mala fides in a bid to prolong unlawful stay at the applicant's property. The applicant, being the owner of the property, has clearly shown that he is entitled to the relief sought.

Accordingly, it is ordered that:

1. The respondent and all those claiming occupation or possession through her are hereby ordered to forthwith vacate Stand Number 9919 Phase 3 Kuwadzana and restore undisturbed and peaceful possession to the applicant.

2. To the extent that it becomes necessary, the Deputy Sheriff is hereby authorised and empowered to attend to eviction and removal of any person claiming occupation or possession through the respondent. Pursuant thereto, the Deputy Sheriff be and is hereby authorized to enlist the assistance of Zimbabwe Republic Police who are hereby directed to provide such assistance to the Deputy Sheriff so as to ensure that provisions of this order are executed and implemented.

3. The respondent shall pay the costs of the suit.