Judgment No. HB 86/13
Case No. HC 2307/10
Xref No. 2223/12, 2752/11
MILDRED SIBANDA (NCUBE)
ASSISTANT MASTER OF THE HIGH COURT
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 3 NOVEMBER 2012 AND 9 MAY 2013
Ms S. Ncube for the applicant
Mrs N. Tachiona for the 1st respondent
MAKONESE J: The Applicant in this matter was married to the late Peter Rodgers Sibanda in terms of an unregistered customary law union in 1970. Five children were born of the marriage. In about 1978 the parties acquired a dwelling house being house number 5382 Luveve 4, Bulawayo. The Applicant lived at the said house with her children and the deceased until 1984 when the late Peter Rodgers Sibanda deserted the matrimonial house and went to reside at Pelandaba, Bulawayo with the 1st Respondent Mildred Sibanda. The late Peter Rodgers Sibanda (hereinafter referred to as the deceased) later married 1st Respondent under the Marriages Act (formerly Chapter 37) on 15 July 1985. First respondent and the late Peter Rodgers Sibanda stayed at the residence in Pelandaba and never set foot at house number 5382 Luveve 4, Bulawayo until the death of the deceased on the 15th December 2005.
Following the death of the deceased 1st Respondent sought to wind up the Estate of the late Peter Rodgers Sibanda. The estate was registered with the Master of the High Court at Bulawayo. A First and Final Distribution Account was lodged by Chelmsford Executors and Trust (Pvt) Ltd. 1st Respondent registered the estate and claimed to be the sole beneficiary of house number 5832, Luveve 4, Bulawayo. This prompted the Applicant to lodge an objection in terms of section 52(8) of the Administration of Estates Act [Chapter 6:01]. There were various exchanges of correspondence between the Applicant’s Legal Practitioners and the Executors of the estate. The 3rd Respondent was called upon to give directions on the matter but apparently failed to do so.
On the 5th July 2011, the Applicant filed a Court Application seeking an Order in the following terms:
“IT IS ORDERED THAT
(i) The Applicant be and is hereby declared the lawful owner of house number 5382, Luveve 4, Bulawayo.
(ii) The 3rd Respondent be and is hereby directed to distribute the estate in terms of paragraph 1 of the Order.
(iii) Costs of this application shall be borne by the 1st Respondent on an attorney and client scale.”
The 1st Respondent strenuously opposed the application and asked the
court to dismiss the application.
At the commencement of the hearing 1st Respondent raised a point in limine arguing that the matter was not properly before the court. The main thrust of 1st Respondent’s preliminary point was that the Application was not properly before the High Court in that Applicant did not observe the provisions of section 68E of the Administration of Estates Act as read with section 68F. Section 68E provides as follows:-
“(1) As soon as possible after drawing up a plan in terms of section 68, an executor shall submit to the Master for approval-
(2) On receipt of a plan drawn up in terms of section 68D, the Master shall take such steps as he considers necessary or appropriate to satisfy himself that-
(a) the executor has consulted all the members of the deceased’s family and beneficiaries agreement to the plan, and
(b) the beneficiaries who have agreed to the plan have done so with full knowledge and understanding of their rights.
(3) If the master-
(a) is satisfied that the plan submitted to him in terms of subsection (1) has been agreed to by all the beneficiaries concerned or by such of them as the executor could with reasonable diligence have consulted, the Master shall approve the plan and authorize the executor to distribute or administer the estate in accordance with it ---.”
The 1st Respondent contends that the Applicant swiftly filed the present application without referring or at least compelling the executor to refer the dispute to the Master. For this reason, the 1st Respondent argues, the matter should be dismissed without going into the merits and referred back to the Master so that the parties can furnish the master with proof of their respective marriages for a possible resolution over the dispute of the inheritance plan.
The 1st Respondent’s point in limine has no basis at all and borders on an attempt to mislead the court. I have taken the trouble to peruse the file held by the Master under reference DRB 238/06. It is clear that there were numerous exchanges between the parties and the Master’s office and the Master failed to resolve the dispute. This is precisely the reason for the matter being referred to this court for resolution.
I would accordingly dismiss the point in limine and proceed to deal with the merits.
The starting point is to take note of certain basic facts which gave rise to this dispute.
(1) On the 9th of March 2006 the 1st Respondent registered the Estate of the late Peter Rodgers Sibanda with the 3rd Respondent.
(2) 1st 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 15th July 1988.
(3) 1st Respondent did not disclose the existence of another wife, the Applicant.
(4) 1st 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) 1st Respondent gave her residential address as 61584 Pelandaba, Bulawayo.
From the onset it is self evident that 1st Respondent intended to inherit
house number 5382 Luveve 4, Bulawayo to the exclusion of the Applicant and her
The issues for determination by this court can be narrowed down to two
(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 1st 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 1st Respondent argues that the Applicant was simply a live-in girlfriend. I am not persuaded by this argument. It has not been disputed that Applicant and 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 1st 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 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 1st Respondent at Pelandaba. To further indicate that 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 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 the Administration of Estates Act (Section 68(4)) 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 and Shamva 2003 (1) ZLR 395.
1st Respondent’s argument that Applicant was merely a live-in girlfriend was a cheap ploy to woodwink the court. There is no doubt that when 1st 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 1st 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.
The Administration of Estates Act provides in section 68F (2) (c) 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 in 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 1st Respondent lived at the Pelandaba house. It is practical common sense and in line with the provisions of the Administration of Estates Act 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 1st respondent to argue that she should get both the Pelandaba and Luveve houses because she is the one in possession of a registered marriage. 1st 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 15th July 1988 and obtained at Tredgold Building between the 1st Respondent and the deceased reflects the residential address of 1st Respondent as 61584 Pelandaba, Bulawayo. Two things emerge:-
(a) at the time of the 1st 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, 1st 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. 1st Respondent on the other hand resides at the Pelandaba house. It seems clear that if 1st 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 1st 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 HC 6297/08, 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 1st 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 3rd Respondent be and is hereby directed to distribute the estate under DRB 238/08 in terms of paragraph 1 of the order.
(3) The 1st Respondent to pay the costs of suit.
Coghlan and Welsh, applicant’s legal practitioners
Bulawayo Legal Projects Centre, 1st respondent legal practitioners