Civil
Appeal
MUTEMA
J:
The
late Addison Mhlanga was of Malawian extraction who came and
naturalized himself in Zimbabwe.
He
married one Dinah Ndlovu but did not have children. The two then
adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu
pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22
September 2003 at age 85 years.
He
owned stand number 49257 otherwise known as Block 26/919 Mpopoma
Township, Bulawayo.
The
adopted child Esther died on 19 November, 2012 leaving three
children, viz
Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.
At
an edict meeting before the Additional Assistant Master on 19 March,
2013 Esther's relatives agreed that the respondent be appointed
executor dative to administer the estate of the late Addison Mhlanga.
Apparently
the respondent is related to the late Addison Mhlanga's late wife
Dinah Ndlovu, the latter having been respondent's maternal aunt.
Ordinarily,
the sole asset of Addison Mhlanga's deceased estate, viz
the Mpopoma house alluded to supra
was set to devolve upon Esther's estate which in turn was set to be
inherited by Esther's three daughters mentioned above.
Following
an advertisement in the Chronicle Newspaper and the Government
Gazette of Addison Mhlanga's estate by respondent, the appellant
out of the blue and having changed the surname on her birth
certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an
application on 10 May 2013 in the magistrates' court Bulawayo to
have an edict meeting for the appointment of herself as heir to
Addison Mhlanga's estate claiming to be the sole surviving daughter
to Addison Mhlanga.
The
application was dismissed and dissatisfied with the outcome the
appellant lodged the current appeal before this court. Two main
grounds of appeal were raised and they are these:
“1.
The learned magistrate erred at law in dismissing appellant's claim
when -
1.1
There was evidence to the effect that the deceased Addison Mhlanga
disclosed, during his lifetime, that appellant was his daughter.
1.2
The appellant had a birth certificate showing that the deceased
Addison Mhlanga's father (sic).
1.3
The deceased, at the time of his death, had allowed the appellant to
reside at his house and she continues to do so now.
1.4
The now deceased Esther Nkala did not reside at the said house –
26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.
1.5
Appellant's lobola was paid to the deceased Addison Mhlanga during
his lifetime.
2.
The learned magistrate also erred at law, in accepting that the later
Esther Nkala's children were entitled to inherit from the late
Addison Mhlanga's estate because Esther Nkala was his adopted
daughter when no document was produced to prove that she was and had
been adopted.”
Appellant's
prayer is that she be declared the late Addison Mhlanga's daughter
and that the late Esther Nkala's children are not entitled to
inherit from the late Addison Mhlanga's estate.
I
will deal with the grounds of appeal hereunder seriatum.
THAT
THERE WAS EVIDENCE TO THE EFFECT THAT ADDISON MHLANGA DISCLOSED THAT
APPELLANT WAS HIS DAUGHTER
The
means which the parties must produce and on which the court can base
its decision is what is called evidence (facta
probantia)
while what has to be proved in any given issue (facta
probanda)
is the domain of substantive law.
In
casu
what had to be proved (factum
probandum)
was that Addison Mhlanga, during his lifetime disclosed that
appellant was his biological daughter.
Was
there such evidence as contended for by the appellant?
What
is not in dispute here is this:
Simanga
Moyo who is appellant's mother was Kenneth Nkhulambe's customary
law wife. Nkhulambe, like Addison Mhlanga, was also of Malawian
extraction.
As
people who find each other in foreign lands are wont to do, the two
would address each other as “brothers”.
Appellant
was born on 24 January 1978 as Doris Dorcas Nkhulambe. Her birth
certificate reflected so.
After
Nkhulambe “divorced” appellant's mother Addison Mhlanga took
appellant and her siblings into his household as he thought that a
stepmother (Nkhulambe's new wife) would not take good care of the
children.
In
1986-1987 the children were taken to Gwanda where Addison had a rural
homestead. Then appellant was in grade 4. In 1992 appellant returned
to Bulawayo and stayed at Block 83 with Nkhulambe and her step mother
until she got married in 2000.
What
is in dispute is that appellant is an adulterine progeny of Simanga
Moyo and Addison Mhlanga.
Appellant
averred that this issue of adultery and paternity only came to light
in the year 2000 when a meeting was held at which Addison Mhlanga
disclosed that appellant was his biological daughter.
Appellant
was not forthcoming on whether she attended this meeting or was
merely told later.
She
said the meeting was attended by the two men, Esther Ncube, Shilling
Phiri, Fatima and Dorcas Phiri.
However,
pertinent to note here is that Fatima herself initially said she sat
in the meeting (see pages 48 of the record) but under
cross-examination on page 50 of the record she said;
“The
elders held their meeting and we were then told [of the illicit
affair of Simanga and Addison Mhlanga] later after the meeting.”
Since
appellant was not an elder, it is therefore safe to infer that she is
incorporated in the “we” referred to by Fatima that they were
only told later. In the event what appellant is alleging is purely
hearsay, which, as evidence, is inadmissible.
Appellant's
witness Addison Phiri did not ameliorate matters.
He
said the meeting alluded to was held in 1997, it having been prompted
by appellant's illness. He said it was a secret between Addison
Mhlanga and himself that appellant was Mhlanga's daughter sired by
him and Nkhulambe's wife.
However,
under cross-examination the alleged secret evaporated into thin air
when this witness said present when Mhlanga told him were “Shilling,
Esnat and myself, those were the only people who were there.”
However,
on further probing he added that Nkhulambe and Edna (Mhlanga's
wife) were also present.
His
year of 1997 contradicts the year 2000 stated by appellant and
Fatima.
Also,
the people he named as being present when he was let into the secret
exclude appellant and Fatima which buttresses the above finding that
appellant's and Fatima's evidence was purely hearsay and
inadmissible.
Further,
it is improbable that Nkhulambe would maintain his cool and silence
on being told that the daughter whom, for 22 years, he had believed
to be his was a progeny of adultery between his wife and a man he
regarded as a brother.
Things
which are inconsistent with ordinary human experience are properly
rated improbable.
It
is also pertinent to note that Simanga Moyo – appellant's mother
was not called to corroborate the alleged adultery in spite of the
fact that she is still alive.
No
explanation for not calling her as a witness was proffered.
It
is often opined that it is only the mother who knows the father of
her child.
In
the result, there is no evidence at all that the late Addison Mhlanga
disclosed that appellant was his daughter.
Accordingly
that ground of appeal must fail.
THAT
APPELLANT HAD A BIRTH CERTIFICATE SHOWING ADDISON MHLANGA AS HER
FATHER
This
ground of appeal seemed to be the main thrust of her argument.
Reliance was placed upon the provisions of section 7 of the Births
and Deaths Registration Act [Chapter 5:02] which state that:
“7.
Evidence of certified copy of entry in register
A
document purporting to be a copy of any entry in any register
certified under the hand of the Registrar-General or a registrar to
be a true copy shall, on its production by any person for the purpose
of any law, be prima
facie
evidence in all courts of the dates and facts therein stated.”
The
contention here was advanced that the provision quoted above is
peremptory and non-compliance with it amounted to a mis-direction.
Reliance
for the proposition was the case of Schierhot
v Minister
of Justice
1926 AD 99 at 109 where INNES CJ spelt out the general principle
governing non-compliance with statutory provisions in these words:
“It
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no force or effect.
And the disregard of a peremptory provision in a statute is fatal to
the validity of the proceedings affected.”
With
respect, I consider Mr Mafirakureva's
interpretation of the phrase prima
facie
evidence too simplistic.
The
phrase prima
facie
is Latin for 'at first sight' or 'sufficient to establish a
fact or raise a presumption unless disproved or rebutted' or 'on
first appearance but subject to further evidence or information.'
This
therefore means that evidence which is prima
facie
is
not absolute as contended for by Mr Mafirakureva.
In
the instant case there is an abundance of evidence rebutting the
prima facie evidence of the appellant's birth certificate.
It
is common cause that from her birth appellant, up until she attained
23 years of age, had her birth certificate bearing the surname of
Nkhulambe.
She
said she changed the surname to Mhlanga in 2001.
That
would be after her marriage in 2000 and a year after the alleged
knowledge of her paternity.
She
does not tell how this change of surname was effected.
She
also said because she was sharing the letters BHD with another
person, this prompted her to acquire a new birth certificate on 7 May
2013 – three days prior to her filing an application in the
magistrates court for an edict meeting to have her declared heir to
Addison Mhlanga's estate on the basis that she was the sole
surviving daughter.
BHD
relates to birth entry number.
Section
18 of the Births and Deaths Registration Act deals with change of
name.
Section
18(3) provides:
“18
Change of name in register
(3)
where the birth of a person has been registered for births and the
surname of the person is changed, otherwise than by adoption, the
person concerned… may apply to the Registrar-General for the
registration of the surname and the Registrar-General shall, on
payment of the prescribed fee and on being satisfied that –
(a)
a notarial deed, as defined in the Deeds Registries Act [Chapter
20:05], setting forth the change of surname has been registered in
the Deeds Registry; and
(b)
the change of surname has been advertised in the Gazette;
register
the change of surname in the appropriate register for births but
without deleting the original surname.
(4)
notwithstanding subsection (3) the Registrar-General may register a
change of surname in the appropriate register for births but without
deleting the original surname even where a notarial deed has not been
registered, if he is satisfied –
(a)
that the change of surname is for a lawful purpose; and
(b)
that the change of surname is not being effected for purposes of
fraud or misrepresentation; and
(c)…
(5)
After the registration of a change of name under this Act every
certified copy of the entry concerned shall omit the original surname
unless otherwise requested by the applicant.”
What
can be gleamed from section 18 above as appertaining to the instant
case in material respects are the following:
1.
There is no evidence adduced or furnished that the appellant ever
applied to the Registrar-General for change of surname. This could
have been shown by a copy of such application and/or receipt for
payment of the appropriate fee;
2.
Even though the Registrar-General is empowered to register a change
of surname where a notarial deed has not been registered, such
notarial deed ought to exist to show that the same was in fact
effected by a notary public.
In
casu
it has not been alluded to, let alone furnished.
I
did ask Mr Mafirakureva
whether a notarial deed was ever executed and he said he did not
know.
If
the appellant through her legal practitioner does not know the fact
then who should?
It
raises eye brows for appellant not to have requested that her
original Nkhulambe surname which she had used till after marriage, be
included in every certified copy of her birth certificate.
Over
and above the foregoing there is no proof that appellant first
changed her Nkhulambe surname in 2001 to Mhlanga except for her
ipsissima
verba.
This
should not have been impossible to prove.
Even
if that were so it would be stretching coincidence to absurdity to
hold that appellant discovered that her birth certificate shared the
same BHD with another person which then necessitated acquisition of
the current birth certificate some three days prior to her filing the
application in the magistrates court for the convening of the edict
meeting for her to be declared sole surviving daughter of the late
Addison Mhlanga hence the sole heiress to his estate, a decade after
Mhlanga's death, one year after Esther's death and several years
knowing that there existed this dispute pertaining to the estate.
The
prima
facie
evidence of the birth certificate sought to be relied upon as proof
that appellant is the late Addison Mhlanga's biological daughter
was sufficiently rebutted to hold no water.
Another
insurmountable hurdle besetting the appellant's case is the legal
position that a child conceived by or born of a wife during the
course of her customary marriage, whether legitimate or as a result
of adultery belongs to her husband: Shumba
v Shumba
HB25-05.
This
is in conformity with the presumption against bastardisation of a
child born as a result of adultery – see Kulumo
v Diyana
& Ors
1944 SRN 35; Hlale
v Dziyake
1938 SRN 34; Ndoro
v Mapfumo
1942
SRN 166; and Elizabeth
& Mzeze
v Gwandibva
1941 SRN 121.
Appellant
cannot therefore bastardise herself.
THAT
ADDISON MHLANGA AT THE TIME OF DEATH HAD ALLOWED APPELLANT TO RESIDE
AT HIS HOUSE AND SHE CONTINUES TO SO DO
This
ground of appeal should not detain us for it is devoid of merit
whether standing alone or in conjunction with any other ground.
It
was common cause that the late Mhlanga regarded appellant's father
Nkhulambe as a brother and when the latter divorced and remarried,
Mhlanga, out of pity for the appellant, took it upon himself to take
appellant and her siblings in.
He
even moved them to Gwanda.
One
cannot, with success, abuse pity by equating it to proof of
paternity.
Appellant
herself stated that Esther told her that she only took a few pots
from Mhlanga's estate because she did not want to have the house
and allowed appellant to continue staying there.
This,
however, cannot mean that such a scenario amounts to an indication of
proof of paternity!
THAT
THE LATE ESTHER NKALA DID NOT RESIDE AT THE MPOPOMA HOUSE AFTER THE
DEATH OF ADDISON MHLANGA
That
either standing alone or read in conjunction with any other ground of
appeal proves nothing pertaining to the paternity being sought by the
appellant.
Over
and above the finding in the preceding ground, it is not disputed
that there were tenants at the house and that Esther was married,
staying at her husband's place.
THAT
APPELLANT'S LOBOLA WAS PAID TO ADDISON MHLANGA
This
contention was contrived to prove that if Mhlanga received and “ate”
appellant's lobola then it would go to prove that he indeed was her
father.
There
is no shred of evidence proving this averment.
As
early as generations before 2000 lobola payments in Zimbabwe were
recorded in writing showing how much was charged for who, for what,
by who, what was paid, the balance and when such balance would be
paid.
Appellant
was asked in cross-examination as to who married her off and her
answer was this:
“A.
Both of them, actually Mhlanga.” (page 47 of the record)
By
“both of them” she meant Kenneth Nkhulambe and Addison Mhlanga.
It
does not require a traditionalist to know that in African custom,
both the putative father and the paramour cannot marry off a bride.
How
come the bride herself was unsure as regards who married her off!
It
is accordingly not difficult to infer and conclude that appellant was
lying when she alleged that both Nkhulambe and Mhlanga married her
off.
Her
father Nkhulambe was the one who did.
THAT
THE LATE ESTHER NKALA WAS NOT MHLANGA'S ADOPTED DAUGHTER FOR WANT
OF DOCUMENTARY PROOF TO THAT EFFECT HENCE HER CHILDREN ARE NOT
ENTITLED TO INHERIT FROM MHLANGA'S DECEASED ESTATE
Now
this we consider to be a red herring and should be dismissed as mere
attempt at sophistry. Pages 58 and 59 of the record record admissions
by the appellant on 5 September, 2013 pertaining to this ground of
appeal in the following words:
“To
both parties by the court:
Q.
Do you both acknowledge that Esther was an adopted child of the late
Addison Mhlanga?
A.
Applicant -Yes.
Respondent
– Yes.
Q.
Esther has children?
A.
Yes.
Q.
How many children does she have?
A.
3 children – names, Sibonisiwe, Zanele, Sikhange Ncube.
Q.
Do you both acknowledge that she is the sole heir or as yet to be
established one of the heirs to the estate of the late?
A.
Applicant – Yes.
Respondent
– Yes.
Q.
Now that Esther is not there who should get her share?
A.
Applicant - her children.
Respondent
- her children.
Q.
It would appear that the dispute is whether or not the applicant
should have a share as well?
A.
Applicant – Yes.
Respondent
– Yes.”
With
the above admissions having been made, the turn around by the
appellant can only be explained away on the basis of greed.
In
any event, having found as we have done above that appellant is not
Addison Mhlanga's daughter, she cannot benefit from his estate and
she has no locus
standi
to raise the issue encapsulated in the last ground of appeal.
Even
if she has she is estopped from raising it.
In
the event, on the totality of the foregoing findings which are
clearly incontrovertible against the appellant, we are constrained to
find the appeal totally devoid of merit and we hereby dismiss it in
its entirety with costs.
MOYO
J…,.: I agree
Messrs
Moyo & Nyoni,
appellant's legal practitioners
Legal
Resources Foundation – Bulawayo,
respondent's legal practitioners
