KUDYA J: The applicant seeks the confirmation of the
provisional order that was granted by this Court on an urgent basis on 10
December 2003. The urgent chamber application and the provisional order were
not served on the first respondent. On 28 August 2008 the applicant applied for
a date of set down of the matter. On 29 August 2008 the Registrar requested for
proof of service of the provisional order on the first respondent. The
applicant responded by filing a notice of withdrawal on 17 October 2008 as
against the first respondent on the basis that she had not served the chamber
application and provisional order on him.
The provisional order was worded
in these terms:
TERMS OF FINAL ORDER SOUGHT
That you show
cause to this Honourable Court why a final order should not be made in the
following terms:
- That the cession of rights in Stand 4780 Glen Norah
A, Harare, from the estate of the late Dambi Michael Biri to second
respondent be and is hereby set aside
- That the first respondent be and is hereby ordered
and required within 10 days of the grant or service of this order on him,
in his capacity as the Executor in the estate of the Late Dambi Michael
Biri, attend to the signing of all documents, and performance of all acts,
necessary to effect cession of rights in Stand 4780 Glen Norah A, Harare ,
to the applicant
- That failing compliance by first respondent with
paragraph 2 hereof, the Deputy Sheriff for Harare be and is hereby
authorized and empowered, in first respondent's stead, to sign the
necessary documents to effect the aforesaid cession
- That the third respondent be required to amend its
records to reflect the content of this order
- That the fourth respondent be and is hereby ordered
and required to facilitate the aforesaid cession of rights in Stand 4780
Glen Norah A, Harare, into the name of the applicant
- That the costs of this application be paid by the second
respondent.
INTERIM RELIEF GRANTED
Pending determination of this
matter, the applicant is granted the following relief:
- That the second respondent be and is hereby
interdicted from evicting or in any way interfering with the applicant's
peaceful occupation of Stand 4780 Glen Norah A, Harare
- That the second respondent be and is hereby
interdicted from selling, donating, ceding or in any way alienating or
encumbering the right, title and interest she presently holds in Stand
4780 Glen Norah A, Harare
- That the fourth respondent be and is hereby
interdicted from facilitating or giving effect to any attempt by second
respondent to alienate or encumber the right, title and interest she
presently holds in the aforesaid property
SERVICE OF PROVISIONAL ORDER
That this Provisional Order be served by the Deputy Sheriff on each of the
respondents.
The effect of the withdrawal against first respondent results in his
substitution by the second respondent in paragraphs 2 and 3 of the final order
sought.
The late Dambi Michael Biri died on 2 July 1985. He married the second
respondent by civil rites on 19 December 1953 at St.
Paul's Mission,
Murewa. Their union was blessed with six children. On his death that marriage
subsisted.
The applicant averred that she met the deceased in 1974. He had been
residing at Stand 4780 Glen Norah A Harare with four of his children and a
younger brother, since 1972. She entered into an unregistered customary law
union with the deceased in October1975 and commenced to reside with him at the
property in question. She bore him three children. She believed his story that
he was divorced from the second respondent. She resided at the property with
the deceased, his younger brother, and their three children and for a short
spell in the 1980s' with the first respondent, his son by the second
respondent. The second respondent never set foot at the property in the 30
years that she separated from the deceased and 18 since his death.
On the deceased's death she did not register his estate. She became aware
on 4 November 2003 that the property had been ceded to the second respondent by
the City of Harare
(fourth respondent) on the instructions of the Master (third respondent). She
therefore launched the present proceedings on 2 December 2003. Apparently the
second respondent registered the deceased's estate on 19 September 2001 and an
edict meeting was held on 14 November 2001. The parties present were two sons
of second respondent by the deceased, the second respondent's sister and the
second respondent. The property in question was listed in the inventory as the
major asset and was transferred to second respondent in terms of a certificate
of authority issued by the Master on 21 February 2003. The applicant attached
three supporting affidavits from the deceased's younger brother and her
daughter with the deceased, and a neighbour. All confirmed that she was the
surviving spouse of the deceased. The deceased's younger brother averred that
the second respondent was "divorced" in the early 1970s' before the deceased
was allocated the property in question.
The second respondent opposed the application. She disputed the
applicant's averment that the first respondent was appointed the executor of
her late husband's estate. She attached the certificate of authority of 21
February 2003 which authorised her to administer her late husband's estate and
transfer the property in issue into her name. She was issued with the
certificate of authority after she had advertised for debtors and creditors in
both the Herald and Government Gazette. She denied that the applicant was a
wife to her late husband and averred that she lived with him in adultery. She
further averred that the house was allocated to her late husband in 1972 and
she contributed towards its purchase from her salary as a teacher. Her husband
chased her away from the house when the applicant intruded into their marriage.
She was not divorced by her husband and their marriage subsisted until his
death.
In his heads of argument, Mr Muzangaza,
for the applicant urged me to set aside the appointment of the second
respondent as the executor of her late husband's estate and proceed to declare
the applicant as the rightful inheritor of the house in question. He asked me
to follow the case of Pedzisayi &
Anor v Pedzisayi & Anor HH
81/2004 were two customary law mistresses of the deceased husband successfully
petitioned this Court to set aside the executorship of his widow. BHUNU J held
that she had acquiesced in the polygamous set up for two decades, had not set
foot on the farm, had not contributed to the development of the farm-a factor
that the two mistresses had done. He ordered the appointment of a neutral
executor to oversee the administration of Pedzisayi's estate. Mr Muzangaza urged me to disregard the
provisions of the Administration of Estates Amendment Act No. 6 of 1997 but
have recourse to the dictates of justice and equity.
As I understand it, to disregard the law amounts to inequity. See Commissioner of Taxes v C W (Pvt) Ltd 1989 (3) ZLR 361 at
372C-D and Barros & Anor v Chimphonda
1999 (1) ZLR 58 (S) at 63A. It is not clear to me which legal regime Mr Muzangaza contends applies to the
applicant's case. Her position is best suited to customary law. At customary
law, at the time of the death of the deceased, a wife could not inherit from
her husband. See Guzuzu v Chinamasa NO
& The Master 1983 (2) ZLR 61(H) at 64E-F; Moyo v Moyo 1990 (2) ZLR 81(S) and Murisa NO v Murisa SC 41/92. His male issue had a preference right
of inheritance over his female issue See Vareta
v Vareta SC 126/90 and Magaya v Magaya 1999 (1) ZLR 100 (S). Spouses
only inherit in terms of the general law. The general law is captured in Act
No. 6 of 1997. Under general law, the applicant is a concubine and not a wife.
Mr Muzangaza conceded that under
general law, an unregistered customary law union is not recognised as a
marriage. In my view, the applicant lacks the legal standing to bring the
present application. She has no locus
standi to approach the court to stop the lawful actions of a wife married
in terms of civil rites for whom the assumption that general law applies is
evident from her marriage regime and the subject matter under consideration.
The grounds of justice and equity set out in the Pedzisayi case have no room in the present case. In any event, the
second respondent completed her executorship on transfer of the property in
issue to the beneficiary approved by the Master, who as it happened was
herself. By operation of law she ceased to be the executor of her late
husband's estate on fulfilling her mandate. She was discharged from that office.
It is not in my view legally feasible, in circumstances as presented by the
applicant, once she has been discharged to set aside her appointment. There is
nothing to set aside.
The next issue for determination revolved around her bid to be declared
as a beneficiary in the deceased estate. She could be a potential beneficiary
were she a surviving spouse. In the face of a prior subsisting civil rites
marriage to another woman, her union with the deceased is not recognized as a
marriage. She does not fall into the surviving spouse category and is therefore
not a potential beneficiary to the deceased's estate. The fact that she resided
with him on the property in issue since 1975; was regarded by some of his
relatives as his wife and bore him three children; that the second respondent
did not set foot thereat after 1975 or enforce any rights and entitlements she
may have had would not alter the law which treats her relationship with him as
concubinage. On his death, the law gives his lawfully wedded wife preference
rights over those which she enjoyed as his mistress.
In the circumstances of this case, there is no room for setting aside the
cession of rights from the second respondent to the applicant. The right, title and interest in the property
is simply beyond the reach of the applicant.
Accordingly, it is ordered that:
- The provisional order granted by this Court on 10
December 2003 be and is hereby discharged.
- The applicant shall pay the second respondent's costs
of suit.
Muzangaza Mandaza
& Tomana, the applicant's legal practitioners