CHIROWODZA v CHIMBARI & ORS
HIGH COURT, HARARE
[Opposed Application HH 725-16]
November 24, 2016
The applicant was married to the deceased in terms of the African Marriages Act [Chapter 238] [now Chapter 5:07]. During the subsistence of the marriage, the applicant acquired two properties which were registered in both their names. However, she went to the United Kingdom in search of employment leaving her husband and children behind. Unbeknown to the applicant, the deceased had subsequently married another woman under the African Marriages Act, before he married her in terms of the Marriages Act [Chapter 5:11]. Upon the death of the deceased, the applicant was not awarded the immovable properties because the executor deemed that she was not living in the houses at the time of the deceased’s death.
Held, that the term “live in” or “lived in” in s 68F of the Administration of Estates Act [Chapter 6:01] must be interpreted in such a way as to maintain the protection of a spouse who has temporary left the country on employment or other activities in search of the needs of the family.
Chimhowa & Ors v Chimhowa & Ors 2011 (2) ZLR 471 (H), followed
Chinzou v Masomera & Ors 2015 (2) ZLR 274 (H), referred to
Administration of Estates Act [Chapter 6:01], ss 68 (4), 68D, 68F (2)(b), (b)(i)
Black’s Law Dictionary (4th edn, West Publishing Co, St Paul, Minnesota, 1957)
Webster’s Universal Dictionary and Thesaurus (Geddes & Grosset, Glasgow, 2002)
S Mpofu, for the applicant
T Madotsa, for the third respondent
No appearance, for the first and second respondent
This is an application for an order declaring one of the immovable properties jointly owned by applicant and her late husband Mapheous Chirowodza matrimonial property.
In 1981, the applicant and the late Mapheous Chirowodza were married to each other in terms of the African Marriages Act [Chapter 238] [now Chapter 5:07]. In 1993, they had their marriage solemnised in terms of the Marriages Act [Chapter 37] in what applicant termed upgrading from a Chapter 238 marriage to a Chapter 37 marriage. Unbeknown to the applicant, her late husband married Sabrina Tatira in 1987 in terms of the African Marriages Act.
During the subsistence of the marriage, applicant and her late husband acquired two immovable properties which are registered in both their names. These are Stand 8567 Area 14 Old Highfield, Harare (“the Highfield property”) and Stand 6846 Zimre Park, Ruwa (“the Ruwa property”). In 2001, applicant went to the United Kingdom (“the UK”) in search of employment leaving her husband and children behind. She alleges this was by mutual agreement. The husband and the children lived in the Ruwa property till his death on 24 June 2011.
The late Mapheous Chirowodza’s estate was duly registered with the office of the Master of the High Court under DR1658/11. The first respondent was appointed executor dative of the estate late Mapheous Chirowodza. The first respondent prepared a first and final administration and distribution account wherein the two immovable properties were dealt with in terms of s 68F (2)(b) of the Administration of Estates Act [Chapter 6:01] (“the Act”). In terms of the distribution plan, neither of the surviving spouses was awarded either of the immovable properties.
The applicant inquired why she had not been awarded the deceased’s 50 per cent share in the Ruwa property as it was her matrimonial property. She was advised that this was because she was not living in that property at the time of her late husband’s death.
It terms of the draft distribution plan the first respondent intended to distribute her late husband’s half share in that property amongst applicant, second wife Sabrina and seven of the deceased’s children. It is this distribution plan that prompted applicant to launch this application for court to declare that the Ruwa property is her matrimonial property and so her husband’s half share therein must be awarded to her.
The first and second respondents did not deem it necessary to respond to the application despite service of the application on them. It would thus be assumed they have no objections to the order being sought and are prepared to abide by any order the court may grant.
The third respondent opposed the application. In her opposition she seemed not to apply her mind on a number of issues such that she ended up offering bare denials without any elaboration or substantiation. For instance, in response to the assertion by applicant that she married deceased in 1981 in terms of the African Marriages Act, the third respondent simply stated that:
“This is denied and the applicant is put to the proof thereof”.
In response to the assertion that the deceased married the third respondent in terms of the African Marriages Act, which fact was unknown to applicant at the time, the third respondent simply stated that:
“This fact is unknown to the respondent.”
Surely, how could a fact pertaining to her own marriage be unknown to her? It was in fact her case that she married the deceased in 1987 in terms of the African Marriages Act.
The third respondent denied that the applicant lived at the Ruwa property or that her household goods were at that property. She did not, however, proceed to say who lived in this house with deceased during his lifetime.
The manner in which the third respondent chose to respond to the application was such that she did not rebut the assertion by applicant that she was in the UK for employment purposes only and that her matrimonial home was in Zimbabwe. The third respondent could also not rebut the assertion by applicant that from the time her late husband and children moved to the Ruwa house after her departure for the UK she would come on vacation and join her family in that house for the duration of her vacation. In short, that had become the couple’s nest.
The applicant further asserted that the decision to move to the Ruwa house before it was completed was made by herself and her husband. They changed their matrimonial home from the Highfield house to the Ruwa house hence whenever she came back to see the family she would go to Ruwa. The Ruwa house became their permanent place of abode as a family.
It is in these circumstances that applicant argued that the Ruwa house must be considered the matrimonial home; her physical absence was due to a mutual agreement for her to go and work in the UK in order to raise resources for the completion of the house and other family needs.
It is pertinent to clarify the status of applicant’s marriage to the late Mapheous Chirowodza in terms of the Marriages Act [Chapter 5:11]. In as far as that marriage was solemnised after the third respondent had already married the deceased in terms of the African Marriages Act, it follows that such marriage ought to be treated as customary marriage. In this regard s 68 (4) of the Act provides that:
“(4) A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for the purposes of this Part even if, when it was contracted, either of the parties was married to someone else in accordance with customary law, whether or not that customary law marriage was solemnised in terms of the Customary Marriages Act [Chapter 5:07]: