This is an opposed application wherein the applicant seeks the following relief:

“IT IS ORDERED THAT:

1. The will dated, 21 November 2005, purportedly signed by the late Nellie Helen Morris appointing the respondent ((first respondent) the executrix testamentary and bequeathing the entire estate to same be and is hereby null and void and therefore of no force and effect (sic).

2. The respondent shall pay costs of suit” (sic).

The applicant and the first respondent are the surviving children of the late Nellie Helen Morris who died testate on 19 January 2006. The applicant and the first respondent do not share the same father. The first respondent resides in the USA and is also known as Adina Adry.

The applicant and the first respondent have been engaged in a bruising legal battle since 2006 and the battle rages on. MAKARAU JP..., made a rather humorous, though poignant, observation when she had a matter placed before her for adjudication wherein the parties had been engaged in a lengthy legal battle; in the case of Esther Mwanyisa v Eneti Jumbo & 5 Ors HH03-10. These are the opening remarks by the learned JUDGE PRESIDENT..., -

“Judges are public servants and as such they are not to complain about what lands on their plates. They must do justice always no matter the state of the case placed before them. I must, however, confess that the above matter is a dog's breakfast. The parties have been to this court on at least five occasions and have appeared before the Magistrate Courts once or twice before.”

In casu, after the registration of the estate of the late Nellie Helen Morris, four applications have been made to this court by the same parties (inclusive of the application herein).

The background facts of the matter are therefore in order.

After the death of Nellie Helen Morris, on 19 January 2006, the first respondent was appointed the executrix of the estate of the late Nellie Helen Morris in accordance with the last will and testament of the late Nellie Hellen Morris dated 21 November 2005. It is common cause that the late Nellie Helen Morris had also signed another will dated 13 March 1981. This earlier will, dated 13 March 1981, has never been contentious. The difference between the wills, dated 13 March 1981 and the one dated 21 November 2005 is that in the earlier will both the applicant and the first respondent were beneficiaries of the estate of the late Nellie Helen Morris whereas in terms of the 2005 will the first respondent is the sole beneficiary of the estate.

Herein lies the basis for this bruising legal battle.

The applicant lodged an application in case number HC6552/06 with this court seeking an order that the 2005 will be declared null and void and the appointment of the first respondent as the executrix of the estate of the late Nellie Helen Morris be set aside. The application was granted in default and the net effect was that the 1981 will was deemed valid. Apparently, on the basis of that judgment, the applicant ended up being appointed as the executor of the estate of their late mother. The applicant is alleged to have wrongfully and unlawfully transferred into his name House Number 4 Fitch Road, Khumalo Bulawayo, the only asset of the estate. Apparently this was also done without the authority of the second respondent. Further to that, the applicant proceeded to “sell” the said house to a third party though title was not transferred to the purchaser for reasons which will follow:

When the first respondent became aware of the developments in case number HC6552/06 and the applicant's alleged unsavoury conduct she filed an application in case number HC1057/09 wherein she sought to have the default judgment in HC6552/06 set aside. In the interim, she lodged an urgent chamber application in case number HC2143/09 to prevent the applicant from disposing of the house in issue pending the determination in case number HC1057/09.

The application in case number HC1057/09 was opposed and all the relevant pleadings in that case have been filed by the first respondent attached to the first respondent's opposing affidavit. The basis for the applicant's case in HC6552/06 was that the 2005 will was forged and therefore null and void. In case number HC1057/09 the first respondent wanted the judgment in case number HC6552/06 rescinded as it was granted in default. Further, the first respondent's case was that the 2005 will was valid as it was authored by their late mother in her presence and signed before two witnesses who were available to testify to that effect.

On 15 October 2009, CHITAKUNYE J, in case number HC1057/09 granted an order in the following terms:

“It is ordered that:

1. The default judgment entered in case number HC6552/06 be and is hereby set aside.

2. The last will and testament of the late Nellie Helen Morris dated, 21 November 2005, is confirmed as being the valid final will.

3. The appointment of the first respondent (now the applicant) as the executor of the estate of the late Nellie Helen Morris is set aside.

4. The appointment of Adina Adry, also called Chiquita Morris (now the first respondent), as executrix of the estate of the late Nellie Hellen Morris is reinstated.

5. The registration of transfer of Stand 1616 Bulawayo Township of Bulawayo Township lands in the name of the first respondent is hereby set aside and the third respondent (Registrar of Deeds Bulawayo) is ordered to cancel such registration and reinstate the original Deed of Transfer in the name of Nellie Helen Morris or amend his records accordingly.

6. The costs of this application shall be borne by the first respondent on the basis of the current tariff of Law Society of Zimbabwe.”

The property in issue Stand Number 1616 Bulawayo Township of Bulawayo is also known as House Number 4 Fitch Road, Khumbalo Bulawayo.

The applicant, Busi Maphosa, and Dylan Kawara signed a Memorandum of Agreement of Sale of an immovable property known as Number 231 New Luveve Township, Bulawayo…, on 15 October 2003.  Busi Maphosa, the applicant, paid the purchase price in full and was given vacant possession of the property, in terms of the Agreement, from 31 December 2003 up to this date. The original owner of the property died in 1983. At the time of the sale Dylan Kawara advised the applicant that the property he was selling belonged to a deceased estate and that Mareverwa Smart Mashayamombe had been appointed the executor of the estate in terms of a will.

The testator was Dylan Kawara's grandfather who bequeathed the property to his grandson Dylan Kawara.

When the grandfather died, on 21 November 1983, the property vested in the grandson, Dylan Kawara.  According to The Law of Succession through the Cases by TILA ISAKOW…, in the absence of a contrary intention in the will, expressly or by necessary implication, a bequest takes effect on the testator's death and is unconditional. The heir, or legatee, may alienate his rights thereto and he may therefore sell them or they may be attached in execution at the instance of his creditors unless the will contains some prohibition.

The will of the late Richard Mashayamombe was accepted by the Master of the High Court - although it did not fully comply with the formalities for the execution of a will. The Master of the High Court must have been satisfied with the document in terms of section 8(5) of the Wills Act [Chapter 6:06].

There was no appeal against the Master of the High Court's decision to accept the will.

The late Lucas Tangani Moyo was a polygamist with at least three (3) wives, one of whom is the applicant in this matter. He died on the 11^th December 2005. At the time of his death, the late Lucas Tangani Moyo and the applicant had been separated for six (6) years although no divorce proceedings had been set in motion.

Prior to his death, the deceased had, on the 25^th January 2002, executed a handwritten Will in terms of which he made certain bequests to the exclusion of the applicant. That Will was lodged with the second respondent on the 8^th March 2006. 

It was accepted.…,.

Although the Will of the deceased was accepted by the second respondent on the 8^th March 2006, it was not until the 26^th February 2007, almost a year later, that the applicant in this matter instituted proceedings in this court by summons action, under case no. HC394/07, seeking an order, inter alia, nullifying the Will in question and removing the first respondent from the position of Executrix which she held. The applicant sought an order, in the alternative, declaring that a partnership existed between her and the deceased and therefore that she be awarded certain items of property belonging to the estate.

It is not clear on what basis the applicant imputed the existence of a partnership when she and the deceased were married in accordance with the Customary Marriages Act [Chapter 5:07].

Regarding her challenge on the validity of the Will, the applicant alleged that it did not comply with the provisions of the Wills Act [Chapter 6:06] dealing with the drafting and signing of Wills.

That action was opposed by the first respondent and the pleadings were pursued until Discovery Affidavits were filed. In fact, the last document filed in that matter is the plaintiff's Discovery Affidavit filed on the 17^th September 2009.

Since then, nothing has been done to prosecute the case.

Be that as it may, the applicant launched the present application on the 31^st August 2009 in which she seeks an order nullifying the winding up of the estate of the late Lucas Tangani Moyo under DRB No. 99/06 and costs of suit on an attorney and client scale…..,.

The Wills Act [Chapter 6:06] empowers the second respondent to accept a Will which does not comply with the provisions of the Wills Act [Chapter 6:06] relating to the drafting and signing of a Will. Section 8(5) of the Wills Act [Chapter 6:06] provides -

“Where the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his will or an amendment of his Will, the Master may accept the document, or that document as amended as a Will for the purposes of the Administration of Estates Act [Chapter 6:01] even though it does not comply with all the formalities for-

(a) The execution of Wills referred to in subsection (1) or (2); or

(b) The amendment of Wills referred to in subsection (2), (3) or (4) of section nine.”

Clearly, therefore, when the second respondent accepted the document submitted as the deceased's Will, he was standing on firm ground.

Section 8(6) of the Wills Act [Chapter 6:06] provides a remedy for those aggrieved by the decision to accept a document as a Will. It reads -

“Any person who is aggrieved by a decision of the Master may appeal to an appropriate Court within 30 days of being notified of the decision of the Master.”

The applicant…, did not appeal the second respondent's decision within thirty (30) days or at all.

I have already stated that the Assistant Master is the authority charged with the Administration of Estates Act [Chapter 6:01] and makes binding decisions in that regard. In this case, he made the decision to accept the document and that decision still stands. It has not been appealed against as provided for in the Wills Act [Chapter 6:06] and this court cannot substitute its own decision when one of a quasi-judicial body already exists.

Further, alternatively, the testator executed a will contrary to the laws of Zimbabwe in that the will completely disinherits his only surviving spouse married to him in terms of the Marriage's Act [Chapter 5:11].

The second issue is whether or not the will is contrary to the laws of Zimbabwe in so far as it disinherits the surviving spouse.

In my view, this is a very important point of law which has to be determined by our courts. However, the parties in this matter did not give it the due importance it deserved in their submissions. The plaintiffs' dealt with the issue in two paragraphs and the defendant in one paragraph. The submissions do not offer any assistance to the court for it to make an informed decision.

The Master of the High Court proceeded to appoint the first respondent as the surviving spouse of the late Amos John Chirunda's estate.

The children of the deceased objected to the appointment and formally lodged an objection with the Master of the High Court. They argued that the first respondent was not married to the deceased and should not be appointed as the surviving spouse.

In order to get guidance on the matter, the second respondent requested a magistrate to conduct an inquiry into the matter in terms of section 68(2) of the Administration of Estates Act [Chapter 6:01].

The magistrate found that the first respondent had married the deceased in terms of customary law and confirmed her as the surviving spouse. Dissatisfied with the decision the matter was taken on appeal. This court determined that the inquiry had been conducted in terms of legislation which had been repealed and set aside the decision of the Magistrates Court as a nullity.

The applicant has now instituted these proceedings seeking the following relief:

“1. That the last will and testament executed by the late Amos John Chirunda on 9 December 1977 be and is hereby declared to be a valid testamentary instrument.

2. That the Master of the High Court be and is hereby directed to admit the said last will and testament to probate.

3. That the appointment of Wilbert Nyamupfukudza as Executor Dative by Letters of Administration issued to him by the Master of the High Court on 19 April 2005 be and is hereby set aside.

4. That the Master of the High Court be and is hereby directed to re-issue fresh Letters of Administration to Margret Sumbureru to enable her to Administer the Estate of the Late Amos John Chirunda.

5. That First Defendant (sic), being Prisca Chinamora, also known as Prisca Chirunda, pay the costs of this application.”

The applicant outlines, in her Heads of Argument, what she perceives as the issues for determination by this court as follows:

“(a) Which law should be applied in determining the validity of the provisions of Amos Chirunda's will in relation to the applicant?

(b) What does the law provide for in relation to the validity of the will?

(c) To what extent does the Administration of Estates Act [Cap 6:06] apply to this estate?

(d) What should be the next course of action in terms of the law?...,.

The sole issue before the court is whether or not the will executed by the late Amos Chirunda, on 9 December 1977, is valid.

In order to determine this issue, the Supreme Court held that regard must be made to the provisions of the African Wills Act [Chapter 240]. The relevant provisions which relate to the execution of wills under the African Wills Act [Chapter 240] are sections 6 and 7 which provide as follows:

“6. Subject only to the limitations imposed by this Act an African may, by will, freely dispose of the ownership of immoveable property or any right attaching thereto.

7. The heir at African law of any deceased African shall succeed in his individual capacity to any immovable property or any rights attaching thereto forming part of the estate of such deceased African and not devised by will.”

It is quite apparent from the above provisions that the African Wills Act [Chapter 240] gave an African capacity to execute a will and to dispose of immovable property. An examination of the African Wills Act [Chapter 240], however, shows that it does not have a provision which is similar in wording to section 17 of the Wills Act [Chapter 6:06]. It seems to me therefore that this court must determine the intention of the deceased when he made the will in order to ascertain its validity. In making such a determination, the court must look at the wording of the will. A reading of the will shows that there can be no doubt that when the deceased made the will his intention was to benefit his wife. The second sentence of the will…, provides as follows:-

“I appoint my wife Margret Chirunda (nee Sumbureru) to be my executor and Heiress to my estate.”

It is common cause that the will was made soon after the late Amos John Chirunda had paid customary bride price for the applicant. At the relevant time, when the will was executed, customary law did not allow a wife to inherit from her husband. The late Amos John Chirunda was clearly intent upon circumventing that aspect of customary law which was discriminatory of women - and particularly wives. That was the mischief that he wanted to avoid in the event of his untimely death. It is clear to me that the late Amos John Chirunda wanted to be certain that in the event of his death his property would not fall into the hands of his male relatives to the exclusion of his wife. However, at the time of his death, in 1997, the deceased and the applicant had divorced. She was thus no longer his wife and they had been so divorced for a period in excess of ten years. It is also common cause that upon divorce the applicant had been awarded a significant settlement.

Could it have been the late Amos John Chirunda's intention that the applicant would, again, inherit his estate upon his death since he did not revoke his will?

In my view, this could not have been his intention. The mischief that the late Amos John Chirunda had sought to circumvent in his will no longer applied with regard to the applicant as she was no longer his wife. It seems to me, therefore, that once the applicant ceased to be his wife the will became invalid as it was no longer capable of enforcement.

On this basis alone I would find that the will was no longer valid and dismiss the applicants claim.

Even if I am wrong in making such a finding based on the fact that the applicant was no longer the late Amos John Chirunda's wife it seems to me that I would still dismiss the application on the basis that the late Amos John Chirunda's will became void upon his marriage to the applicant in terms of the General Law in 1978. It is common cause that following the applicant's marriage to the late Amos John Chirunda under customary law they subsequently registered their marriage in terms of the Marriage Act [Chapter 37] (now Chapter 5:11]). Section 13 of the African Marriages Act [Cap 238] provided that an African who married in terms of the Marriage Act [Chapter 37] (now Chapter 5:11]) and who disposed of his property in terms of a will ceased to be governed by African customary law. The relevant provision provides as follows:

“The solemnization of a marriage between Africans in terms of the Marriage Act shall not affect the property of spouses which shall be held and may be disposed of, unless disposed of by will, shall devolve according to African law and custom.”

It seems to me that the import of the above provision is that General Law became applicable to the deceased. The law which was applicable to wills at the relevant time was the Deceased Estate Succession Act [Cap 302]. This explains, in my view, the reason why the African Wills Act [Chapter 240] did not have a provision that is similar to section 17 of the Wills Act [Chapter 6:06].

Section 2 of the Deceased Estate Succession Act [Cap 302] provided as follows:

“Except in the case of a party to a joint will who has adiated, a will, other than a joint will of an intended husband and wife who thereafter married each other, executed by any person prior to marriage shall become null and void on marriage unless such person endorses on such a will that it is desired that the same shall remain in full force and effect. Such endorsement shall be duly signed and witnessed in the manner required in the case of a will.”

Clearly, the above provision nullifies any will, other than a joint will, which is made by a person before marriage. Although this provision was repealed by section 24 of the Wills Act [Chapter 6:06] the section goes on to state that the section shall continue to apply in respect of wills that were made before the 1^st January, 1988 to the extent that the Wills Act [Chapter 6:06] does not apply to it.

The will by the deceased was executed in 1977, and, in my view, clearly falls within the provisions which were saved as the Wills Act [Chapter 6:06] does not apply to it. The late Amos John Chirunda executed the will prior to his marriage to the applicant in terms of the Marriage Act [Chapter 37] (now Chapter 5:11]). There is no evidence that the late Amos John Chirunda endorsed the will as required by section 2 of the Deceased Estate Succession Act [Cap 302] thus making the will null and void. For the reasons stated above I make the following order:

Section 5 of the Wills Act provides for what dispositions a subject can lawfully make in a valid will. It reads:

“Power to make dispositions by will

(1) Subject to this Act, and any other enactment, every person who has capacity, in terms of section four, to make a will, may, in his will -

(a) Make provision for the transfer, disposal or disposition of the whole or any party of his estate and;

(b) Make provision for the custody or guardianship, after his death, of any of his minor children; and

(c) Make any other lawful provision, disposition or direction whether in respect of his own or any other property or in respect of any other matter.”

On a proper reading of the above section, it is clear that the first defendant could only make a valid, lawful disposition of the disputed property in his will if he was the lawful owner of the property.

This explains why he had to lie in his will that he had title to the property. His narration of the basis of his disposition however clearly establishes that he had a claim against his former employer for terminal benefits. This also explains why the first defendant and the executor to his father's deceased estate had to perpetuate the lie that the deceased had title to the property in dispute well knowing that he did not.

That being the case, all what the deceased father could bequeath to his son was the right to claim his terminal benefits.

It is plain as daylight that had the first defendant and the executor to his father's deceased estate not lied that his late father had title to the disputed property the Master of the High Court would certainly not have listed it as part of the late Lovemore Zhuwake's deceased estate. The listing of the property as part of the late Lovemore Zhuwake's property was a legal nullity and of no force or effect as it was based on fraud. What is a nullity at law is something that never happened in the eyes of the law. What this means is that in the eyes of the law there was no distribution of Stand Number 381 Goodhope Township as claimed by the first and fifth defendants.

This matter has a somewhat long history dating back to July 2006. The late Dr John Joseph Manolakakis arrived in Zimbabwe in the early 1980s. He established a medical practice at 41A Fort Street, Bulawayo. At all material times he was ordinarily resident at a flat at Kenilworth Towers, Ascot, Bulawayo. Dr Manolakakis became unwell and subsequently died on the 2^nd of July 2006. He owned a number of assets including motor vehicles, certain immovable property and furniture, and medical equipment at his surgery. He also held bank accounts in South Africa and Greece as well as in Zimbabwe. At the time of his demise, the late Dr John Joseph Manolakakis was living with Evangelia Patrinos who also died in Greece on the 9^th March 2008.

The dispute in this matter relates to a “Will” dated 3^rd June 2005 which was discovered after the death of the late Dr John Joseph Manolakakis. The document was accepted as a valid Will by the Assistant Master of the High Court, Bulawayo on the 6^th July 2006. The estate of the late Dr John Joseph Manolakakis was registered under DRB611/06. The late Evangelia Patrinos was issued with Letters of Administration on the 23^rd August 2006 and appointed Executrix Dative. The estate of the late Dr John Joseph Manolakakis was then administered with the assistance of National Executor and Trust….,.

The plaintiff's claims, in essence, seek an order declaring the Will dated 3^rd June 2005, purported to have been executed by the late Dr John Joseph Manolakakis, to be null and void. Further, the plaintiff seeks an order declaring that the late Dr John Joseph Manolakakis died intestate. The plaintiff, additionally, seeks an order declaring the plaintiff to be the sole heir to the estate of the late Dr John Joseph Manolakakis.

The plaintiff led evidence from three witnesses and then closed her case….,.

The plaintiff…, led evidence ffrom Dr Elmaadway, a close friend of the late Dr John Joseph Manolakakis. His evidence was essentially that he had known the late Dr John Joseph Manolakakis for more than 20 years and they were very close family friends. He was present when the disputed Will was discovered in a drawer by the late Evangelia Patrinos. The witness said he was surprised to learn that the late Dr John Joseph Manolakakis had left a Will and he was generally suspicious about the circumstances the Will was found in the drawer. Dr El Maadway further testified he found it strange that the late Dr John Joseph Manolakakis could have written a Will in South Africa, at Milpark Hospital, at a time he was unwell. The Will was opened by the late Evangelia Patrinos in his wife's presence and another family friend.

The last witness to be called to testify on behalf of the plaintiff was the wife of Dr El Maadway, one Gamila Atwa Ibrahim Youssef. She and her husband were close friends with the late Dr John Joseph Manolakakis. She was very close to Evangelia Patrinos. Her evidence was substantially similar to that of her husband. She said that she laughed when the late Evangelia Patrinos produced the document now referred to as the disputed Will. She also gave evidence to the effect that she did not believe that the Will was written by the late Dr John Joseph Manolakakis. She, fairly, conceded, in my view, that, she could not state that Evangelia Patrinos had written and signed the Will….,.

The plaintiff closed her case and counsel for the first and fifth defendants launched an application for absolution from the instance premised on two main grounds, namely:

(a) The plaintiff's declaration, in paragraphs 13.3 and 13.4, makes specific averrements that the disputed Will was written and signed by Evangelia Patrinos. The first part of attack is that since no evidence has been placed before the court that Evangelia Patrinos authored the Will, then the defendants should not even open their case and absolution from the instance ought to be granted.

(b) The disputed Will complies with the provisions of the Wills Act [Chapter 6:06]. The defendant's counsel argues that since no one challenged the accepted Will in terms of section 6(6) of the Wills Act [Chapter 6:06] within the stipulated period the Will should be accepted as the Last Will and Testament of the late Dr John Joseph Manolakakis. Section 6(6) of the Wills Act [Chapter 6:06] provides as follows:

This is an opposed application in which both applicants seek relief in the following terms;

“IT IS HEREBY ORDERED THAT

1. The alleged Will of Takavengwa Lovelace Samuriwo, dated 2 December 1992, and accepted by the 5^th  respondent on 30 May 2012 be and is hereby declared as null and void.

2. The 1^st, 2^nd and 3^rd respondents shall pay costs of suit at a legal practitioner and client scale.”

The first applicant, Fatima Magedi, is the surviving widow of the late Takavengwa Lovelace Samuriwo (the late Samuriwo). She entered into a customary law union with the late Samuriwo and apparently no children were born of this customary law union. The second applicant, Kennedy, is the late Samuriwo's adult son born out of wedlock with another woman whose further particulars are not furnished by both applicants.

The first, second and third respondents are the late Samuriwo's adult children and beneficiaries of his estate. They were born out of the marriage between the late Samuriwo and the late Perpetua Samuriwo….,.

The background facts of this matter are as follows;

The marital history of the late Samuriwo seems to be largely common cause except as regards the relevant dates. Firstly, the late Samuriwo married the late Perpetua Samuriwo, the mother of the first, second and third respondents. The type of the marriage is not stated but from what is alleged it was a registered marriage. The late Perpetua Samuriwo died in 2001 although the first applicant claims it was in 2005. I am more inclined to accept the version of the first, second and third respondents who are Perpetua Samuriwo's children and are likely to know better the date their mother passed on unlike the first applicant who was not yet married to the late Samuriwo by then. After the death of Perpertua Samuriwo, the late Samuriwo married Joseline Chiedza Mukupe in February 2003 in terms of an unregistered customary law union and the union was dissolved or ended in October 2009. No children were born out of this union. The late Samuriwo then entered into a customary law union with the first applicant which union ended when the late Samuriwo passed on 29 February 2012. No children were born out of this union. The date the first applicant and the late Samuriwo entered into the union is in issue. The first applicant alleged it was in 2009 but the first, second and third respondents allege it was in 2011. This dispute, in my view, is immaterial to the issues to be resolved in this matter. The point is made that whatever the date (year) the first applicant and the late Samuriwo entered into the unregistered customary law union the first applicant is the widow of the late Samuriwo.

The late Samuriwo died testate on 29 February 2012.

On 31 August 2012, the fifth respondent (the Master of the High Court) accepted the last Will and Testament of the late Samuriwo which had been authored on 2 December 1992 when the late Samuriwo was married to the late Perpetua Samuriwo and they had already had the three children being the first, second and third respondents. The last Will and Testament (the Will) by the late Samuriwo is attached (a copy) to the applicants' founding affidavit as Annexure A to A3. As per that Will, the late Samuriwo bequeathed his entire estate to the first respondent, Ruramai Samuriwo, failing which the entire estate would devolve, in equal shares, between the second respondent, Yvonne Samuriwo, and the third respondent, Tinashe Samuriwo, and also granting a life usufruct to his now late wife Perpetua Samuriwo in respect of the Bluffhill house in Harare.

It is not clear as to when the second applicant was born, but his mother, it seems, was never married to the late Samuriwo. The first, second and third respondents allege that he was later introduced into the family.

The first and second applicants seeks an order to have the Will of the late Samuriwo, dated 2 December 1992, and accepted by the Master of the High Court, declared null and void. According to both applicants the basis for this is two-fold;

i) That the Will was invalidated when the late Samuriwo contracted an unregistered customary law union or marriage with the first applicant, either in 2009 as per the first applicant, or in 2011 as per the first, second and third respondents.

ii) That the Will is probably fake as the Master accepted a photocopy and that no original copy was ever produced.

In this regard, reference is made to the correspondence between the Master and the first applicant and also between the Master and the second respondent.

The application is opposed by the first, second and third respondents….,.

I now turn to the question of whether the Will accepted by the Master of the High Court is a fake one as it is allegedly in photocopy form and that no original copy was produced.

This point should not detain us at all. All what the applicants are saying is that the Will should be fake because it is not in original form. The applicants do not refer to any provision in the Wills Act [Chapter 6:06] which provides for such a requirement. The requirements for a valid Will are provided for in section 8(1)(a) to (d) of the Wills Act [Chapter 6:06]. There is no specific requirement that the Will should be in original copy form, although generally that would be desirable. In fact, section 8(5) of the Wills Act [Chapter 6:06] gives the Master power to accept a Will for the purposes of the Administration of Estates Act [Chapter 6:01] even in circumstances the Will does not meet the requirements in section 8(1) or (2) and section 9(2), (3) and (4) of the Wills Act [Chapter 6:06]. 

On this basis alone, I am not persuaded by the argument taken by the applicants in this regard. The applicants did not specify the basis at law for the Will to be deemed invalid if it is not in original form.

Assuming that I may be wrong in the finding I have made, the Master of the High Court's Report, dated 12 July 2013, put the matter to rest. The Master of the High Court accepts and acknowledges the apparent error which may have been made by a junior officer in the Master of the High Court's Office as regards the communication referred to by the applicants between the Master's Office and the first applicant and the Master's Office and the second respondent…., The Master of the High Court, in the report filed of record, clearly states that the original Will was filed as a Live Will in 1992 with the Master's Office and that the Will the Master of the High Court considered and accepted in casu is an original Will and not a photocopy. The Master of the High Court pointed out that the Live Will never went missing. The fact is supported by a letter written to the late Samuriwo by A.J.A. Peck Legal Practitioners…, which states as follows;

“Your Will

We have to advise that your Will was registered at High Court under reference L.W.263/92 dated the 10^th of December 1992.”

The letter in question is dated 16 December 1992. Its authenticity has not been put into issue. 

The argument by the applicants that the Will accepted by the Master of the High Court is probably fake and in photocopy form lacks merit and is dismissed.

This leads me to that issue which is whether an unregistered customary law union (or marriage although I prefer the word union) entered between the first applicant and the late Samuriwo invalidates the Will.

The applicants' position is that it invalidates the Will whereas the first, second and third respondents argue that it does not invalidate the Will. Surprisingly, both parties rely on the same provision, section 16(1) of the Wills Act [Chapter 6:06] in support of each party's position. 

This dispute, therefore, can be resolved on the basis of the interpretation of section 16(1) of the Wills Act [Chapter 6:06].

Section 16(1) of the Wills Act [Chapter 6:06] provides as follows;

“16. Effect of testator's subsequent marriage on Will

(1) Subject to the section, a Will shall become void upon the subsequent marriage of a surviving testator.”

The applicants submitted that the Will made by the late Samuriwo became void when the late Samuriwo entered into a customary law union with the first applicant in 2009 or 2011 which Will had been made on 10 December 1992.

The question I have to answer is whether a customary law union or an unregistered customary law marriage is regarded as a marriage for the purposes of the Wills Act [Chapter 6:06].

Section 2 of the Wills Act [Chapter 6:06] defines what is a marriage for the purposes of that Act as follows;

“'Marriage' includes a marriage solemnised in terms of Customary Marriages Act [Cap 5:07].”

The applicants argue that the definition of marriage referred to above does not exclude an unregistered customary law marriage as this is not specifically stated. 

I do not find favour with this rather weird interpretation.

It is trite that a civil marriage contracted after the execution of a Will invalidates that Will. See In re: Savanhu 1990 (2) ZLR 177 (H) (although the case does not deal with this specific point and is distinguished from this case).

In the case of Mapenzauswa v Muskwe & Ors 2008 (1) ZLR 376 (H)…., KUDYA J, in explaining the genesis of the enactment of section 16(1) of the Wills Act [Chapter 6:06] referred to the case of Savanhu v Heirs Estate Savanhu 1991 (2) ZLR 19 (S)…, in which GUBBAY CJ sets out the legislative basis for promulgating section 16(1) of the Wills Act [Chapter 6:06] as follows;

“It is plain to me that by enacting the provision, the lawmaker was minded to alter the common law in accordance with which a Will is not revoked by the subsequent marriage of the testator. See Ludwig v Ludwig's Executor (1848) 2 Menz 452; Shearer v Shearer's Executors 1911 CPD 813; Brande NO v Perlmutter & Ors 1969 (2) RLR 103 (A) at 109 C; 1969 (4) SA 101 (RA) at 106. It was appreciated that the operation of such a principle would cause an injustice and untold hardship. So, in 1929, a change in the law was effected by the introduction of s2 of the former Deceased Estates Act, presently superceded by s16(1) of the Wills Act. Its object is to afford some measure of protection to the new spouse of the testator who had been previously married, and to any issue, whether born to the parties or adopted by them. The provision contemplates more than the mere conversion of an existing polygamous matrimonial union to one of monogamy. It envisages a necessary change, brought about by the subsequent marriage, to the status of both the spouse and testator to that of a married person – from a bachelor, divorce or widower in the case of a man and from spinster, divorce or widow in the case of a woman. It is designed to avoid a situation in which the Will of one or each of them, which predated the subsequent marriage, makes no provision for the other's new spouse.”

The question which arises is whether the protection referred to by CHIEF JUSTICE GUBBAY has been extended in our law to those women who opt to marry in terms of an unregistered customary law marriage like in this instant case.

The position of the law, in my view, currently is that an unregistered customary marriage is not a marriage generally in the eyes of the law except when such specific recognitions is given by a particular statute or enactment. Section 3 of the Customary Marriage Act [Chapter 5:07] makes the point very clear and it provides as follows;

“3. Marriages not to be valid unless solemnised

(1) Subject to this section, no marriage contracted according to customary law, including the case where a man takes to wife the widow or widows of a deceased relative, shall be regarded as a valid marriage unless -

(a) Such marriage is solemnised in terms of this Act.”

The limited recognition given or afforded to an unregistered customary law marriage is provided for in section 3(5) the Customary Marriages Act [Chapter 5:07]. It provides as follows;

“(5) A marriage contracted according to customary law which is not a valid marriage in terms of this section shall, for purposes of customary law and custom relating to status, guardianship, custody and rights of succession of the children of such marriage, be regarded as a valid marriage”…,.

Despite the progressive legislative provisions enacted since independence and positive judicial activism, the legal disabilities suffered by women who opt to marry under the unregistered customary law marriage remain in the various spheres of our law. As an example, the Matrimonial Causes Act [Chapter 5:13] is not applicable in relation to such unregistered customary law marriages as such women would have to find some cause of action under general law if they are to benefit from the matrimonial estate outside “maoko property” at the dissolution of such a union.

It is my view that section 16(1) of the Wills Act [Chapter 6:06] has only extended the said protection to those women married in terms of a registered customary law marriage [Chapter 5:07]. I do not believe that the legislature, in section 2 of the Wills Act [Chapter 6:06], intended to include unregistered customary law marriages. If that is the case, then the definition would simply have referred to customary law marriages, excluding the need for registration. It would be absurd for the applicants to state that the definition of a marriage in the Wills Act [Chapter 6:06] does not exclude unregistered customary law union or marriages. While one may make a case for the need for legislative intervention to protect those women who enter into unregistered customary law marriages to be protected by the provisions of section 16(1) of the Wills Act [Chapter 6:06], I do not share the view that the law, as it is now, provides for such protection. The protection has only been extended to those married in terms of registered customary law marriages as provided for in [Chapter 5:07].

My finding is that the customary law union or marriage which the first applicant entered into with the late Samuriwo did not invalidate the Will made by the late Samuriwo on 10 December 1992 prior to this union. In conclusion, I hold the view that the Will is valid. 

The applicant in this matter seeks an order of this court in the following terms:

“It is hereby ordered that:

(1) The Will of Gabriel Siwela who died testate on the 10^th of July 2012 is hereby declared null.

(2) There is no order as to costs.”

The facts of this case, as narrated by the applicant, are as follows.

The applicant is, by birth, a Botswana citizen. In 1973, she married the deceased under a customary law union. Their marriage was registered seven years later under the African Marriages Act [Chapter 238] on 18 March 1980. The couple had four children, two of whom are now late but two of them, namely, Virginia Siwela (born in 1977) and Ntando Siwela (born in 1987) are still alive. Before the deceased married the applicant he had other children, including Nozizwe Siwela.

The applicant averred that the deceased and herself started living together at Number 120 Ntabazinduna Flats in Barbourfields, Bulawayo. Through the joint hard work of both of them they managed, in 1985, to buy an immovable property in Malindela suburb Bulawayo. The property is known as 11 Blake Road, Malindela also known as a piece of land situate in the District of Bulawayo measuring 1190 square metres called Stand 3766, Bulawayo Township of Bulawayo Lands. The property was their matrimonial home which they bought and developed together. It was her averment that the parties never separated at any point during the subsistence of their marriage until the death of the deceased separated them.

Her late husband worked for Meikles Stores and retired in 2002.

I pause to observe that at that point the parties had been living in the matrimonial home for 17 years when the deceased retired. After his retirement, the applicant continued to provide for the family single handedly as she was then the only one employed. She carried on with her obligation until the untimely death of the deceased in July 2012.

The applicant further averred that she had always dedicated her energy to the joint development of their estate and the improvement of their matrimonial home. Her contribution was both direct and indirect. Little did she know that the deceased had executed a Will in 2001 wherein he directed as follows in paragraphs 3 and 4;

“                                                          3

I bequeath the immovable property known as certain piece of land situate in the District of Bulawayo measuring 1190 square metres called Stand 3766 Bulawayo Township of Bulawayo Lands to my daughter NOZIZWE SIWELA.

                                                                  4

The rest and residue of my estate I bequeath in equal shares to Virginia Siwela and NOTHANDO SIWELA.”

The applicant has not taken issue with the validity of the Will at all. 

Her contention is that she is a joint owner of the property having contributed towards the acquisition of the property both directly and indirectly. They acquired the property together although it is registered in the name of the deceased.

At the time the Will was executed, the parties had been living in the home for 16 years. The parties were working jointly to effect improvements on the property. At the time the deceased passed on they had lived in the house for 27 years and had been married for 39 years.

Her evidence that the deceased and herself acquired the property together has not been controverted and remains intact….,.

The fact that the property is registered in the testator's name does not take the matter any further. About 80% of properties in this country are not registered in the names of both parties - especially amongst the black people. The averments by the applicant show that she was clearly entitled to 50% share in the said property while the deceased was entitled to 50% share also. This court accepts her averrements.

It was therefore not proper for the deceased to bequeath what was not his. He could only lawfully bequeath his half share to Nozizwe Siwela.

Having held that the applicant's entitlement in the property under discussion is 50%, it is held, further, that the deceased's Will falls foul of the provisions of section 5(3)(a) of the Wills Act.

The Will is therefore of no force or effect insofar as it purports to bequeath the applicant's 50% share in the property. Clause 3 of the testament should accordingly read thus:

“I bequeath my 50% share in the immovable property known as certain piece of land situated in the district of Bulawayo measuring 1190 square metres called Stand 3766 Bulawayo Township of Bulawayo Lands to my daughter NOZIZWE SIWELA.”

At the hearing of the matter, the legal representatives of the parties advised the court that they were in agreement with the above findings but indicated that they were still discussing the issue of whether or not the property should be sold in the light of the applicant's advanced age. She is well above 60 years and has nowhere to go as she came from Botswana 41 years ago. She cannot afford to buy another house as she is now out of employment. They advised this court that they would report to it on or before 7 March 2014.

In the early 1980's, the late Dr John Joseph Manolakakis arrived in Zimbabwe. He is of Egyptian descent. He set up a medical practice in Bulawayo where he resided until his death on the 2^nd of July 2006. At the time of his demise, the late Dr. Manolakakis lived with his girlfriend of 12 years, Evangelia Patrinos. A Will, dated 3^rd June 2005, was found at the late Dr Manolakakis's residence soon after his death. In terms of the Will, which is now the subject matter of these proceedings, the deceased bequeathed his entire estate, in Zimbabwe, Greece, and South Africa to Evangelia Patrinos. Evangelia Patrinos was appointed executrix testamentary in the estate of Dr Manolakakis. Evangelia Patrinos later died in Greece on 11^th November 2008.

The sole issue for determination by this court is whether the handwritten Will, dated 3^rd June 2005, was written and signed by the late Dr John Joseph Manolakakis….,.

The Merits

This is an application for an order that the Will of the late Sonto Dube be and is hereby declared null and void together with costs of suit.

The facts of this matter are that the applicant and the first respondent are sisters and were both married to one Phineas Dube. The first respondent was the first wife of the late Phineas Dube and the applicant was a sister to the first respondent; she was then impregnated by the late Phineas Dube when she stayed with her sister (the first respondent) and was then taken by the late Phineas Dube as his second wife. The second respondent is the mother-in-law to both the applicant and the first respondent and is a widow of the late Sonto Dube.

Sonto Dube is a father to the late Phineas Dube. The late Sonto Dube is the owner of Stand 539 Nguboyenja as it is registered in his name with the Bulawayo City Council.

As alluded to above the major asset the deceased had, and which is dealt with in the Will, is the Emerald Hill house. It is common cause that that house is registered in the deceased's name and was thus his property.

As aptly noted in Takafuma v Takafuma 1994 (2) ZLR 103 (S)…,:

“The registration of rights in immovable property in terms of the Deeds Registries Act…, is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered…,.”

As the owner of the property, the deceased had the right to dispose of the property in a manner he pleased in the Will.

As regards the rights of a spouse in a situation of a conflict between family law rights and property law rights - property law rights tend to take precedence.

In Muswere v Makanza 2004 (2) ZLR 262 (H) the court held that:

“A wife cannot stop her husband from selling the matrimonial home or any other immovable property forming the joint estate if it is registered in his sole name - even if she contributed directly and indirectly towards the acquisition of that property. Anachronistic as it is, the legal position, at present, is the right of a wife to the matrimonial estate, as determined by the principles of family law, are inferior to the rights of her husband in the same property as determined by the principles of the law of property.”

Clearly, therefore, the deceased had the right to bequeath his property to whoever he wished in his Will.

The applicant also argued that the Will disinherits the surviving spouse and so, in terms of section 5(3) of the Wills Act, it is invalid to that extent.

Section 5(3) of the Wills Act provides that:

“No provision, disposition or direction made by a testator in his Will shall operate so as to vary or prejudice the rights of:

(a) Any person to whom the deceased was married, to a share in the deceased's estate or in the spouses' joint estate in terms of any law governing the property rights of married persons; or…,.”

In Estate Wakapila v Matongo N.O. and Ors 2008 (2) ZLR 43 (H)…, KUDYA J had occasion to analyse the import of this section and this is what he said:

“The provisions of section 5(3)(a) of the Wills Act prevent the testator from eroding the property rights vested in his spouse by law in either his or their joint estate. These rights, in my view, are those that the spouse has at the time the Will is executed as opposed to future or contingent rights that arise on the death of the testator. After all, the variation or prejudice does not arise on the demise of the testator but at the time the Will is written, notwithstanding that the Will only commences to operate on his death.”

The learned judge went on to hold that:-

“It is fallacious to argue that at the time of death the surviving spouse is vested with rights in a deceased estate in which a testamentary disposition has been made. The first reason is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator. The second reason is that to give such a meaning to the provision in issue would result in a radical alteration of the common law power of a spouse to dispose of his or her property to whomsoever he wishes. If the lawmaker intended such a radical departure from the common law, it would have said so in clear language. It would be absurd to allow the spouse to dispose of his property during his or her lifetime but take away that power from him to dispose of it by Will.”

The above explains the correct application of the section.

It would not have been intended to interfere with a spouse's sole rights in a property, which rights he had the power to dispose without the consent of the other spouse during his lifetime.

In casu, the deceased's right to dispose of the property as he pleased is further confirmed by the ante nuptial contract the spouses executed. A careful reading of the provisions of the ante nuptial contract shows that the parties intended to exclude community of property and of profit and loss. To this extent, clause four of the ante-nuptial contract provides as follows:-

“That each of the said intended consorts shall be at full liberty to dispose of his or her property and effects, by Will, Codicil or other testamentary disposition, as he or she may think fit.”

It is important to appreciate that antenuptial contracts must be interpreted in accordance with the ordinary rules applicable to bona fide contracts. Where the intention of the parties is clear, that should be adhered to.

At common law, under this form of ante-nuptial contract, the general capacity and property rights of the parties remain unaffected by the marriage. They retain their separate estates. They are not liable for each other's debts, with the exception of debts contracted for household necessities.

The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates or encumbers his wife's property without her consent, she may recover it from the third party with the rei vindication…,.

In addition, the spouse whose property was improperly alienated, hypothecated or otherwise disposed of has a personal action for damages against the other. The South African Law of Husband and Wife, 5^th ed, H. R. HAHLO..,.

The object of an antenuptial contract is to exclude the normal legal consequences of marriage, particularly community of property, and to replace them with the consequences desired by the spouses and which the law allows them to choose.

In Introduction to Family Law, P J VISSER and J M POTGIETER…, the esteemed authors stated that:-

“The most important characteristic of an antenuptial contract is that it regulates the matrimonial property system of the parties. Only in so far as an ante-nuptial contract, for example, also provides for donations between spouses can it be regarded as a contract which creates obligations. In other words, an ante nuptial contract primarily determines the nature of the legal principles which govern the financial position of the spouses and it does not actually lead to contractual claims against each other.”

At the demise of one of the spouses, the estate of the first dying spouse devolves upon his or her heirs, while the surviving spouse retains his or her estate un-affected by the dissolution of the marriage by death.

It is also a principle of such ante-nuptial contract that if one of the spouses had, during the marriage, disposed of the property of the other without the latter's consent, the latter may now, if he has not done so before, claim damages. The same holds true if, owing to the fault of one of the spouses, property of the other spouse was destroyed, damaged or lost….,.

I am of the view that, based on the above, the applicant's claim, both in the main and in the alternative cannot succeed….,.

I also find that no legal justification has been established for the deceased's Will to be tampered with by restricting it to only half of his estate.

Regarding the alternative relief sought, I am of the view that it is not sustainable.

In clause 1, the applicant seeks that the property known as No. 8 in the building known as St. James Terrace, St. James, Cape Town, South Africa be excluded from the estate of the deceased.

As already alluded to, that property is governed by a joint Will that the deceased and Anita June Bruk-Jackson executed. Clause 1 of that Will states that:

“We place on record that we jointly own section no. 8 in the building known as St. James Terrace, St. James, Cape Town. Notwithstanding anything contained in any other Wills heretofore made by us, on the death of the first dying of us, we bequeath the first dying's share in the said property to the survivor of us.”

Clearly, therefore, that property is bequeath