No S.C. 15\2002
Appeal No 277\97
CHAUMBA v RODRICK CHAUMBA
COURT OF ZIMBABWE
JA, SANDURA JA & CHEDA JA
MARCH 18 & JULY 11, 2002
for the appellant
appearance for the respondent
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 appellants father.
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.
purposes of clarity I will refer to the appellants father as
Roderick, and the parties only as the appellant and the respondent.
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
Ishmaels death the appellant and Ishmael attended
at the Community
Court in Chivhu where the appellant was appointed heiress to her
fathers estate. Ishmael then died.
respondent would not accept this and took the matter up to the
Provincial Magistrates Court.
Provincial Magistrate decided against the appellant. He appointed
the respondent as heir to his grand-fathers estate.
to be answered is: Was he right in doing so or was the decision of
the Community Court correct?
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
estate of African to be dealt with according to usage of his tribe
African who has contracted a marriage according to African law or
custom or who, being unmarried is the off spring of parents
according to African law or custom, dies intestate his estate shall
be administered and distributed according to the customs
of the tribe or people to which he belonged.
In their book,
African Law and Custom in Rhodesia, Goldin
say this on p 284:-
principles and practice of rules and customs concerning succession
are subject to variation and difference as is all customary
however, two broadly or generally similar systems, that which
prevails among the Shona and secondly among the Ndebele.
significant difference is that under Shona law a deceaseds eldest
son is his heir but under Matabele law the heir is the
surviving son of the deceaseds principal or great house.
on the same page they say this:-
Shona law, on the failure of sons and their male descendants - and
of brothers and their male descendants - the estate is taken
deceaseds father, but if he is not alive then by his brothers.
In the absence
of relations on the male side the son of the deceaseds eldest
sister is the heir.
DUMBUTSHENA CJ in Chihowa
1987 (1) ZLR 228 (S) decided, with two Supreme Court judges
concurring, that female children could be appointed heiresses
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
Chapter 8:07, this decision was overruled by the full bench in
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
female children, there is an exception in the Constitution in the
form of s 23(3). It reads as follows:-
contained in any law shall be held to be in contravention of
subsection (1)(a) to the extent that the law in question
any of the following matters:
marriage, divorce, burial, devolution of property on death or other
matters of personal law;
application of African customary law in any case involving Africans
or an African and one or more persons who are not Africans
such persons have consented to the application of African customary
this case, and according to Shona custom, when Roderick died, his son
Ishmael was to be heir to the estate. When Ishmael died,
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 Ishmaels 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.
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.
appellants claim is dismissed with costs.
EBRAHIM JA: I agree