DISTRIBUTABLE (54)
Judgment
No S.C. 55\2002
Civil
Appeal No 170\2000
PRISCA
CHIRUNDA v (1) MARGARET SUMBURERU (2) THE MASTER
OF THE HIGH COURT
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, CHEDA JA & MALABA JA
HARARE
JUNE 17, 2002
P.
Nherere,
for the appellant
E.
Mushore,
for the first respondent
No
appearance for the second respondent
CHEDA
JA: After hearing submissions from counsel for the parties we
made the following order:
It
is ordered:
That
the judgment of the court a
quo be and is hereby
set aside.
That
the costs of appeal and the costs in the court a
quo shall be borne by
the Estate.
The
following are the reasons for that order. Amos John Chirunda
(hereinafter referred to as Amos) married Margaret Sumbureru
(hereinafter
referred to as Margaret). The date of their marriage
is not given but they divorced on 23 July 1986.
After
their marriage, and before they had any children, Amos made a will on
9 December 1977. In this will he appointed his wife
to be Executor
(sic) and Heiress to his estate. He also provided that in the event
of his wife dying at the same time with him,
his nephew Hastings
Chirunda and his sister Alice Chirunda were to be joint heir and
heiress to his estate in equal shares. This
will was never amended
but remained as it was up to 23 July 1986 when Amos divorced
Margaret. Even after the divorce he did not
make any changes to the
will until his death.
During
the subsistence of the marriage three children were born. No
changes were made in the will to cater for the children.
According
to the affidavit of Prisca Chirunda (nee Chinamhora) (hereinafter
referred to as Prisca), Amos married her within July
1986
customarily. Prisca says she lived with Amos until his death.
Prisca
claims that after Amos death, on 13 February 1998, the second
respondent, (hereinafter referred to as the Master) issued
Letters of
Administration and appointed the first respondent to be Executrix to
the late Amos estate.
She
says the letters were issued as a result of the misrepresentation of
Margaret who told the Master that she was the spouse of
the late
Amos, and did not mention that she had been divorced. Margaret had
also not told the Master that Prisca was customarily
married to Amos.
On
19 February 1998 Prisca says she saw an advertisement in which the
Executrix Testamentary advertised for debtors and creditors.
She
immediately contacted her legal practitioners and also visited the
Master and advised him of the position.
She
says upon divorce Margaret ceased to be the spouse in terms of the
Administration of Estates Act [Chapter 6:01] and, as such,
any wills
written before the divorce and remarriage would be null and void.
She
also said the amendment to section 68 of the Administration of
Estates Act [Chapter 6:01] makes her eligible to be treated as
a
spouse and to be a beneficiary of the estate of her late husband.
In
response to that, Margaret, in her opposing affidavit said she had
seen Prisca with Amos about 1984 when they were driving in
a car
together.
She
says she was married to Amos and they had three daughters. They
divorced on 23 July 1986.
After
hearing about a ceremony at Amos house she expected to be told if
there was a will and who the heirs were as Arundel School
required
$30 000 for the childrens fees. She later learnt that the Master
wished to see her and she went to see him. She says
although she
told him about the divorce he asked her to complete documents in
which she was to declare herself as the surviving spouse
of Amos.
After she had done that he appointed her as Executrix Testamentary
and issued her with Letters of Administration. She
said Amos never
married after their divorce.
This
matter was then set down for hearing as an application at the High
Court.
Although
Miss Mushore
says they had requested that the matter be referred to trial, the
judge subsequently delivered the judgment that is now appealed
against. In his judgment the judge dismissed the application with
costs.
At
the hearing of the appeal several issues were raised. However,
those issues, together with the grounds of appeal are no longer
relevant because at the conclusion of the matter, both counsel agreed
that the decision of the court a
quo was based on the
wrong law, and it was also on that basis that we set it aside.
The
court a quo
based its decision on the provisions of s 17(1) of the Wills Act
[Chapter 6:06] which reads as follows:-
Where,
after a testator has made a will, a decree or order of a court
dissolves or annuls his marriage
the
will shall have effect as if any appointment of his former spouse as
an executor or administrator were omitted; and
any
disposition or benefit to or in favour of his former spouse shall
lapse;
except
in so far as it appears that the testator intended otherwise.
It
has been agreed by both counsel that the court should have examined
and relied instead on the provisions of the now repealed
African
Wills Act [Chapter 240] as amended by the African Wills Amendment Act
No 3 of 1976. Section 3(2)(d) of the Wills Act [Chapter
6:06] in
the relevant part provides as follows:-
3. Application
of Act
This
Act shall apply in relation to wills made on or after the 1st
January 1988.
In
relation to wills made before the 1st
January 1988 this Act shall apply to
the
effect upon any such will of the testators marriage or of the
dissolution or annulment of his marriage, where the marriage
or the
dissolution or annulment thereof, as the case may be, took place on
or after the 1st
January 1988 and
Although
no date is given, it is common cause that Amos and Margaret married
before 1988. The will was also made before 1988 as
it is dated 9
December 1977.
The
dissolution of the marriage was made on 23 July 1986.
It
was for the above reasons that both counsel agreed that the case was
decided on the basis of the wrong law.
It
seems there are other ways of resolving this problem. It is not for
this Court to direct the parties on what action to take.
SANDURA
JA: I agree
MALABA
JA: I agree
Dube
Manikai & Hwacha,
appellant's legal practitioners
Coghlan
Welsh & Guest,
first respondent's legal practitioners
