DISTRIBUTABLE (48)

Judgment No S.C. 15\2002

Civil Appeal No 277\97

NYEMBESI CHAUMBA v RODRICK CHAUMBA

SUPREME COURT OF ZIMBABWE

EBRAHIM JA, SANDURA JA & CHEDA JA

HARARE MARCH 18 & JULY 11, 2002

D. Kanokanga, for the appellant

No appearance for the respondent

CHEDA JA: The appellant appeals against the decision of the Magistrates Court in which the respondent, the son of her late brother, was appointed heir to the estate of the appellant’s father.

The record used for the appeal is a reconstructed record which lacks a lot of details concerning the background. However, based on the facts stated and submissions made by counsel, it is still possible to determine the matter.

For purposes of clarity I will refer to the appellant’s father as Roderick, and the parties only as the appellant and the respondent.

Roderick died intestate on 16 February 1996. He left a son, Ishmael, who was his only son, and the appellant, a daughter. The record says that Ishmael later died but does not state at what stage. Before Ishmael’s death the appellant and Ishmael attended at the Community Court in Chivhu where the appellant was appointed heiress to her father’s estate. Ishmael then died.

The respondent would not accept this and took the matter up to the Provincial Magistrate’s Court.

The Provincial Magistrate decided against the appellant. He appointed the respondent as heir to his grand-father’s estate.

The question to be answered is: Was he right in doing so or was the decision of the Community Court correct?

To answer this question one has to look at Customary Law and Statutes.

It seems to be common cause that the parties are of the Shona tribe. They come from the Chivu District. For that reason Shona custom and practice would apply. This approach is based on the provisions of section 68(1) of the Administration of Estates Act 6:01 which reads as follows:-

“68. When estate of African to be dealt with according to usage of his tribe

1. If any African who has contracted a marriage according to African law or custom or who, being unmarried is the off spring of parents married according to African law or custom, dies intestate his estate shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged.”

In their book, African Law and Custom in Rhodesia, Goldin and Gelfand say this on p 284:-

“The principles and practice of rules and customs concerning succession are subject to variation and difference as is all customary law.

There are, however, two broadly or generally similar systems, that which prevails among the Shona and secondly among the Ndebele.

The most significant difference is that under Shona law a deceased’s eldest son is his heir but under Matabele law the heir is the eldest surviving son of the deceased’s principal or ‘great house’”.

Further down on the same page they say this:-

“In Shona law, on the failure of sons and their male descendants - and of brothers and their male descendants - the estate is taken by the deceased’s father, but if he is not alive then by his brothers.

In the absence of relations on the male side the son of the deceased’s eldest sister is the heir.”

Although DUMBUTSHENA CJ in Chihowa v Mangwende 1987 (1) ZLR 228 (S) decided, with two Supreme Court judges concurring, that female children could be appointed heiresses following the coming into effect of the Age of Majority Act which was then Act No 15 of 1982, now section 15 of the General Law Amendment Act Chapter 8:07, this decision was overruled by the full bench in Magaya v Magaya S-210-98, where MUCHECHETERE JA pointed out that although according to the Constitution it may appear as if it is wrong to discriminate against female children, there is an exception in the Constitution in the form of s 23(3). It reads as follows:-

“23(3)Nothing contained in any law shall be held to be in contravention of subsection (1)(a) to the extent that the law in question relates to any of the following matters:

1. adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;

2. the application of African customary law in any case involving Africans or an African and one or more persons who are not Africans where such persons have consented to the application of African customary law …”

In this case, and according to Shona custom, when Roderick died, his son Ishmael was to be heir to the estate. When Ishmael died, the estate would continue to devolve within the same line, that is, to his eldest male son.

It is on this basis that the respondent, who is Ishmael’s son, claimed he should be the heir. Although he is not the eldest son, it is agreed that the elder son, for some reason, did not want to be the heir.

In accordance with what Goldin and Gelfand said, it was not wrong to appoint the respondent.

The fact that Ishmael may not have been formally appointed heir before he died should not make any difference as his death cannot change the custom.

In view of the above I come to the conclusion that the Provincial Magistrate was correct in appointing the respondent as heir.

The appellant’s claim is dismissed with costs.

EBRAHIM JA: I agree

SANDURA JA: I agree

Kanokanga & Partners, appellant's legal practitioners