K v K & ORS

HIGH COURT, HARARE

[Opposed Application HH 826-16]

February 23 and December 29, 2016

CHITAKUNYE J

Succession – Review of decision of Master of the High Court in terms of Administration of Estates Act [Chapter 6:01] – Application brought out of time – Whether court can condone.

The applicant had approached the court to have a decision of the Master reviewed in terms of s 52 (9) of the Administration of Estates Act [Chapter 6:01] outside the 30 day time limit prescribed by the section.

Held, that the provision which affords the right to an aggrieved party to seek review does not allow for an extension of the time within which such review may be launched. The court cannot accord to itself the power to condone the failure on the part of the applicant to file the application within the period provided for by the statute.

Cases cited:

Chapeyama v Matende & Anor 1999 (1) ZLR 534 (H), referred to

Chimhowa & Ors v Chimhowa & Ors 2011 (2) ZLR 471 (H), applied

Chinzou v Masomera & Ors 2015 (2) ZLR 274 (H), referred to

Machafa v Mukumirwa 2001 (2) ZLR 540 (H), referred to

Mayiswa v Master & Anor 2011 (2) ZLR 441 (H), applied

Pasipanodya v Muchoriwa 1997 (2) ZLR 182 (S), referred to

Legislation considered:

Administration of Estates Act [Chapter 6:01], ss 52 (9), 68, 68F (2)(b)

African Marriages Act [Chapter 105] now [Chapter 5:07]

Customary Marriages Act [Chapter 5:07], s 16

Matrimonial Causes Act [Chapter 5:13], s 5 (1)

Book cited:

Hahlo HR The South African Law of Husband and Wife (5th edn, Juta & Co Ltd, Cape Town, 1985) pp 22, 337, 338

T Magwaliba, for the applicant

I Goto, for the first respondent

No appearance for the second and third respondents

CHITAKUNYE J:

This is an application in terms of s 52 (9) of the Administration of
Estates Act [Chapter 6:01].

In the founding affidavit, the applicant states that:

“The present application is made in terms of s 52 (9) of the Administration of Estates Act in terms of which it is provided that any person aggrieved by the direction by the third respondent may apply to the Honourable Court for an order setting aside the direction and request the Honourable Court to make any such order as it thinks fit.”

The applicant seeks an order that:

1. That the applicant be and is hereby declared to be deemed the sole surviving spouse of the late TTK who died on 14 November 2001 for the purposes of the administration of the deceased estate.

2. That the applicant shall be vested with all rights and benefits of inheritance as are applicable where a deceased in respect of whose estate is governed by African Customary Law is survived by a single spouse in terms of s 68 of the Administration of Estates Act.

3. That the marriage of the first respondent, the late TTK be and is hereby deemed to have been terminated for all purposes at the time that the first respondent left the matrimonial home and ceased to live with the deceased as her husband in or about the year 1980.

4. That consequently, the first respondent shall not be regarded as a spouse of the deceased in terms of the African Customary Law for the purposes of the administration of the estate of the late TTK.

5. That the second respondent shall prepare and lodge with the third respondent the first and final administration account in the estate of the late TTK giving effect to clause 1 up to 4 of this order and lodge the said account within 30 days of the date of this order.

6. That the first respondent shall pay the costs of this application.

Brief facts:

The applicant married the late TTK in terms of African Customary Law in 1977. Their marriage was unregistered. At the time of her marriage, the applicant found that the first respondent was already married to the late TTK in terms of the African Marriages Act [Chapter 105], now [Chapter 5:07]. The first respondent’s marriage to the late TTK was solemnised on 6 September 1972.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login