CHINZOU v MASOMERA & ORS
HIGH COURT, HARARE
[Opposed Application HH 593-15]
July 9, 2015
CHITAKUNYE J
Practice and procedure - Affidavit - What is - Difference between and heads of argument - Role of legal practitioners in the drawing of.
Administration of estates - Deceased estate - Whether party can through the expediency of a declaratur seek the setting aside of plan of distribution without bringing an application for review.
Succession - Deceased estate - Wife with a valid marriage certificate but had not been staying at matrimonial home for 37 years - Effect of on award of "matrimonial home" - Situation that of de facto divorce.
Interpretation of statutes - Literal rule - When mischief rule relied upon - Intention of the legislature - Role of.
The applicant had not lived with the deceased for a period of 37 years prior to his death. She approached the court on affidavit arguing that she was the surviving spouse and seeking a declaratur that she was entitled to the matrimonial home as the surviving spouse. The house had not been awarded to her in terms of the distribution account whose regularity she had not impugned.
Held, that an affidavit is supposed to be a sworn statement of facts deposed to by a deponent on facts that are within the knowledge or belief of the deponent. Legal practitioners in preparing affidavits for clients must desist from implanting their own arguments into the affidavits at the expense of the deponent telling their own story.
Held, further, that party cannot through the expediency of an application for a declaratur effectively seek the setting aside of a distribution plan without following the statutory provisions bearing upon such challenge.
Held, further, that the intention of the legislature could not have been that one of the parties who had lived in a situation of a de facto divorce could be entitled to come back at the demise of the other spouse and be awarded the "matrimonial" house as his/her exclusive property to the exclusion of children of the marriage and subsequent unions who had been born and lived at the house.
Cases cited:
Chimhowa & Ors v Chimhowa & Ors 2011 (2) ZLR 471 (H), applied
Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S), referred to
Stellenbosch Farmers' Winery Ltd v Distillers' Corporation (SA) Ltd and Another 1962 (1) SA 458 (A), applied
Legislation considered:
Administration of Estates Act [Chapter 6:01], ss 52(8), 52(9), 68F
Deceased Estates Succession Act [Chapter 6:02], s 3A
Marriage Act [Chapter 5:11]
C Mucheche, for the applicant
S Chatsanga, for the first respondent
CHITAKUNYE J:
In this application the applicant seeks an order, inter alia, that:
(1) The applicant be and is hereby declared the sole beneficiary for house No 4040 Glen Norah A, Harare, registered in the name of the late Fred Garikayi Muchenje and consequently the first respondent be and is hereby directed to reflect that position in the distribution account for Estate Late Fred Garikayi Muchenje, DR 565/12.
(2) The third respondent be and is hereby ordered to effect cession of ownership of house No 4040 Glen Norah A, Harare from the name of the late Fred Garikayi Muchenje into the name of the applicant upon receipt of a distribution account prepared by the first respondent and approved by second respondent.
I must at the outset express my disquiet at the applicant's affidavits. An affidavit is supposed to be a sworn statement of facts deposed to by a deponent on facts that are within the knowledge or belief of the deponent. In this case both the founding affidavit and the answering affidavit read more like the legal practitioner's heads of argument. Such heads of argument are mostly on legal opinions.
The facts relevant to the applicant's version are scantly sprinkled here and there and in some instances seem tailored to suit the legal argument being proffered.
I am of the view that legal practitioners in preparing affidavits for clients must desist from implanting their own arguments at the expense of the deponent telling their own story. Legal opinion must be kept to the minimum as that has its bigger share in the heads of arguments. I nevertheless decided to consider the application despite the above noted anomalies with the applicant's affidavits.
The applicant was married to the late Fred Garikayi Muchenje in 1965 in terms of the Marriage Act [now Chapter 5:11].
In 1972 the late Fred Garikayi Muchenje (hereinafter referred to as the late Fred) was offered tenancy of Stand 4040 Glen Norah A, Harare. In order to qualify for that tenancy he had tendered his marriage certificate as was required then.
That house was eventually offered for purchase to the late Fred as a sitting tenant in 1981.
On the 22 March 2012 the late Fred passed on. At the time of his death the late Fred and applicant were no longer staying together as husband and wife. The applicant was not clear as to when they separated. She only stated that during his lifetime her husband consummated an adulterous affair with another woman and he subsequently chased applicant out of the matrimonial home. Nowhere in her affidavits did she disclose when she was chased away. It was, however, agreed that at the time of his death the late Fred was staying with this other woman, Stembile Muchenje, at the property in question.
It was only in the opposing affidavit that the first respondent revealed that the two had lived apart for 37 years prior to the late Fred's death. The applicant did not dispute that. It is thus taken as accepted.
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It is common cause that the first respondent was appointed executor dative in the estate late Fred after which he proceeded with the administration of the estate. In his administration he accepted applicant as the surviving spouse but noted that she was not staying at the property in question at the time of Fred's death as the two had separated about 37 years ago. Upon considering all potential beneficiaries comprising the late Fred's 10 children and applicant the executor prepared his first and final distribution account and submitted it to the Master for confirmation. Upon not receiving any objection during the period the account lay for inspection, the Master duly confirmed that account on 4 September 2012.
In the distribution account the executor identified essentially the house in question as the only major asset for distribution. There being 11 beneficiaries, that is 10 children and one surviving spouse the executor allocated equal shares to each of the beneficiaries resulting in applicant being awarded a child's share.
It was after the confirmation that on 31 October 2012, the applicant filed this application purportedly seeking a declaratory order. However an examination of the relief sought shows that in effect applicant is seeking to have the confirmed account set aside without applying for review of the Master's decision. For instance she seeks that she be declared the sole beneficiary for the house in question and that the first respondent be directed to reflect that change in the distribution account and that the second respondent be ordered to effect that change by effecting cession in favour of the applicant and to the detriment of other beneficiaries.
The applicant is thus seeking to have the confirmed distribution account changed in her favour without following the procedure for challenging the distribution account set out in the Administration of Estates Act [Chapter 6:01].
Section 52(8) of the Administration of Estates Act, provides that:
"Any person interested in the estate may at any time before the expiration of the period allowed for inspection lodge with the Master in writing any objection, with the reasons thereof, to that account."
Section 52(9) enjoins the Master to consider such account together with any objections that may have been duly lodged and to give such directions thereon as he may deem fit.
An aggrieved party is given the opportunity to challenge the Masters' decision. In this regard proviso (i) to s 52(9) of the Administration of Estates Act provides that:
"Any person aggrieved by any such direction of the Master may, within thirty days after the date of the Master's direction, and after giving notice to the executor and to any person affected by the direction, apply by motion to the High Court for an order to set aside the direction and the High Court may make such order as it may think fit."
In casu, the applicant did none of the above. The applicant did not raise any objections nor did she challenge the Master's decision within 30 days from date of confirmation. The application is thus not proper. I would thus dismiss the application with costs on that basis.
I am of the view that even on the merits the application would not have succeeded. I thus proceed to elucidate my reasons below.
The applicant's application was premised on a misconception. She alleged that the executor recognised the late Fred's marriage to Stembile Muchenje as valid and accepted Stembile as a surviving spouse entitled to the house. Unfortunately that is not the case. The first respondent indicated that he did not recognise Stembile as a surviving spouse deserving the house but recognised applicant as the surviving spouse.
The applicant alluded to the first respondent's letter to the Master dated 14 June 2012 as confirmation that the first respondent had accepted Stembile as a surviving spouse as a result of which he denied applicant that status. A perusal of that letter does not support applicant's assertion. In that letter whilst acknowledging that the late Fred had married Stembile in terms of the Marriage Act, the first respondent clearly indicated that Stembile Muchenje's marriage could not be recognised as the first marriage was still valid. He categorically stated that the beneficiaries to the estate were the applicant as the surviving spouse and the 10 children. To quote his own words:
"It was however noted that the deceased had married all his wives in terms of Marriage Act, chapter 5:11. It therefore means that Mrs. Stembile Muchenje's marriage to the deceased could not be recognised as the first marriage was still valid. This therefore left the estate with 11 (eleven) beneficiaries being one wife Jessie Chinzou and 10 children."
The key factor which the first respondent considered was that at the time of Fred's death applicant had not been staying at the house in question. Thus in applying s 3A of the Deceased Estates Succession Act [Chapter 6:02] the first respondent concluded that it cannot be said applicant was living at the property immediately before the demise of Fred. It is that finding that made him not award the house to applicant.
The issue for determination is thus whether applicant was staying at the house immediately before Fred's death so as to benefit in terms of s 3A.
Section 3A of the Deceased Estates Succession Act, provides that:
"The surviving spouse of every person who, on or after the 1st November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate –
(a) the house or other domestic premises in which the spouses or the surviving spouse, as the case maybe, lived immediately before the person's death; and
(b) the household goods and effects which, immediately before the person's death, were used in relation to the house or domestic premises referred to in paragraph (a),
where such house, premises, goods and effects form part of the deceased person's estate."
Counsel for both parties agreed that generally the literal rule of interpretation is the first port of call when construing legislation.
In Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) at 356F to 357A GUBBAY CJ had this to say on the principals of interpretation:
"The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or create an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd and Anor 1962 (1) SA 458 (A) at 476E-F. The same notion was expressed in another way by MARGO J in Loryan (Pty) Ltd v Solarsh Tea & Coffee (Pty) Ltd 1984 (3) SA 834 (W) at 846G-H..."
In casu, it is common cause that the applicant was not living at the house with the late Fred at the time of his demise. It is in those circumstances that applicant argued that the interpretation of the "term immediately before the person's death" be construed to include her situation since she was the only surviving spouse. Counsel for the applicant argued that a purposive approach is what would meet the justice of the case. The mischief intended to be addressed by the legislature must be considered.
In considering the mischief the section was intended to address it is clear to me that the circumstances of each case must be considered in its own context. In this regard the words of WESSELS JA in Stellenbosch Farmers' Winery Ltd v Distillers Corporation (SA) Ltd and Another 1962 (1) SA 458 (A) are apposite. At 476E the learned judge said that:
"...it is the duty of the Court to read the section of the Act which requires interpretation sensibly, i.e. with due regard, on the one hand, to the meaning or meanings which permitted grammatical usage assigns to the words used in the section in question and, on the other hand, to the contextual scene, which involves consideration of the language of the rest of the statute as well as the
'matter of the statute, its apparent scope and purpose, and, within limits, its background'."
In considering the matter of the statute, its scope purpose and background of the legislation in question it is appropriate to identify the mischief that was intended to be addressed by the section or sections.
In Chimhowa & Ors v Chimhowa & Ors 2011 (2) ZLR 471 (H) at 475G-476C, CHIWESHE JP had occasion to deal with ss 3A of the Deceased Estates Succession Act and 68F of the Administration of Estates Act, as in this case, and this is what he said:
"In reading the legislation governing deceased estates in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of the law has in the last decade been the subject of much debate and controversy. A number of amendments have been brought to bear to this branch of the law. The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice by relatives of deceased persons to plunder the matrimonial property acquired by the spouses during the subsistence of the marriage. Under this practice, which had become rampant, many widows were deprived of houses and family property by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution. In many cases the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often the result of years of toil on the part of the deceased and the surviving spouse. This is the mischief that the legislature sought to suppress in introducing the provisions such as s 3A of the Deceased Estates Succession Act and s 68F of the Administration of Estates Act and the Deceased Persons Family Maintenance Act [Cap 6:03]".
In the interpretation of the sections in question the above intention of the legislature must not be lost. In casu, it is apparent that the deceased and applicant were allocated the house on a purely rent basis.
According to Annexure "C" tendered by the applicant, which is a letter dated 14 January 2013, from City of Harare, the decision to sell rented properties to sitting tenants was only made in about 1980. Deceased was offered the property to buy on 1 January 1981 and he signed his application to purchase the property on 16 June 1981. He thereafter signed the Deed of Sale on 6 April 1983. The portion applicant was supposed to sign as co-purchaser remained unsigned to date. That did not stop the property being sold to deceased. The deceased apparently paid for the property in terms of the purchase agreement.
Since at the time of deceased's death the applicant had been away for about 37 years it follows that the applicant separated from deceased well before the decision to sell the property was made. That is deceased died in 2012 less 37 years takes us to 1975.
Though the applicant in her founding affidavit said she had been constantly asserting her rights by visiting the house right up to the late Fred's demise such was just a bald assertion without any substance. I am inclined to believe she was not being candid at all. Clearly after leaving the matrimonial home she does not seem to have taken any legal steps to assert her rights in the property. She cannot be said to have been staying at that property for those 37 years.
I am of the view that the intention of the legislature was that a surviving spouse in an intestate estate should not be uprooted from the house or domestic premises he/she lived in immediately before the death of the person, and provided such property formed part of the deceased person's estate.
In casu, the applicant had last lived in the premises 37 years before the death of the deceased. That in my view cannot by any stretch of imagination be termed immediately before deceased's death.
The fact that this was the only immovable property owned by the deceased would still not make it "immediately".
I thus conclude that even applying the purposive approach it cannot be said applicant lived in the house immediately before deceased's death. She had last been there 37 years ago. Her absence was not because she had gone for employment or for such other activities as would still entitle her to come back upon completion. It was not her contention that she was living at the late Fred's rural home or other premises owned or under the control of the late Fred. According to applicant she had been chased away by the deceased and she stayed away for 37 years. During those 37 years she did not allege that she was dependent on the late Fred for shelter or other amenities of life. The impression created is that she had virtually been banished from the late Fred's life for those 37 years. I do not think that it was the intention of the legislature that either of the spouses, who had lived on separation for such a long period as 37 years, in a situation I would describe as de facto divorce, would be entitled to come back at the demise of the other spouse and be awarded the house as his/her exclusive property to the exclusion of children of the marriage and subsequent unions who had been born and lived at the house. I am of the view that one should have links of living as husband and wife prior to the deceased person's death. In casu, such links were no longer there but for the marriage certificate.
It was also argued that applicant contributed towards the acquisition of the house and so she should be entitled to the house. In terms of her contribution towards the purchase of the house in question, it may be noted that at the time she left the couple were simply leasing the property from the Council. It was not a lease to buy. The decision to offer sitting tenants the option to purchase was made in 1980 and this was after applicant had left the house. She could not have contributed towards the purchase of that property at all. It is thus incorrect to say she immensely contributed towards the purchasing of that property as her legal practitioner seemed to argue. Clearly the only reason she has to benefit is that despite being chased away the marriage remained extant as neither party formally sought a decree of divorce. It is that link that first respondent properly recognised and considered her as the only surviving spouse.
By virtue of being the only surviving spouse she is a beneficiary in the estate late Fred, but cannot, in my view inherit the house to the exclusion of the deceased's children in terms of s 3A of the Act.
Section 68F(2)(d)(i) of the Administration of Estates Act provides, in relation to the estate of persons who die intestate, that:
"...where the deceased person is survived by one spouse and one or more children, the surviving spouse should get –
(i) ownership of or, if that is impracticable, a usufruct over , the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; ..."
Evidently the aspect of where the spouse lived at the time of deceased's death is important. In casu, the applicant was not living at the house in question at the time of deceased's death.
It is thus clear to me that the first respondent did not err in not awarding the house to applicant. Apart from the applicant there are children of the deceased who are beneficiaries to the estate. This is thus not a case of marauding relatives evicting or denying applicant the inheritance. It is a matter of the applicant and the 10 children of the late Fred sharing the estate in equal shares. These children comprised her own children and those borne to the deceased and Stembile. These children had lived at this house as their home.
I am of the view that the circumstances of this case are such that applicant must share the house with deceased's children.
Accordingly the application is hereby dismissed with costs.
Matsikidze & Mucheche, applicant's legal practitioners
Chatsanga & partners, first respondent's legal practitioners
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