Judgment No. HB 1/15

                                                                                                                                                                         Case No. HC 518/09

MARIA RABEKA

versus

LARISSA STOCKIL

and

ASSISTANT MASTER OF THE HIGH COURT

and

REGISTRAR OF DEEDS N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 30 OCTOBER 2014 AND 8 JANUARY 2015

Miss T. Moyo for the applicant

Steven Collier for the 1^st respondent

Opposed Application

MAKONESE J:        The Applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06].  In particular, reliance was placed on the provisions of Section 18 of the Wills Act.  The relief sought by the Applicant in the Draft Order is as follows:

            “IT IS ORDERED THAT:

The estate of the late Manuel Arthur Da Silva shall be distributed in terms of section 18 of the Wills Act, [Chapter 6:06]”

            The Applicant claims that she was married to the late Manuel Arthur Da Silva in terms of an unregistered customary law union in 1990, with whom she had five children, three of them being minors.  Manuel Arthur Da Silva having died on the 28^th August 2006, the Applicant claims that her children are entitled to inherit from the deceased in their capacity as legitimate children.

            The application is opposed by the First Respondent who denies that Applicant was married to the late Manuel Arthur Da Silva in terms of customary law.  Further, First Respondent denies that Applicant’s children are entitled to inherit from the deceased as legitimate children.  It is not in dispute that the deceased and first Respondent’s mother were divorced in 1978.  In 1979 the deceased then proceeded to write a Will bequeathing his entire estate to his daughter the first Respondent.  The estate of the late Manuel Arthur Da Silva was registered with this court under DRB No. 855/06.  First Respondent was appointed Executrix Dative on the 27^th August 2006.  The Estate has since been wound up.

Preliminary Issue

Before I deal with the matter on the merits, I propose to dispose of the preliminary issue that has been raised by the First Respondent.  It has been argued by the First Respondent that the application is defective and should be struck out as it is irregular.  The contention by the First Respondent is that the application states on the face of it that it is “Court Application For Maintenance in terms of the Wills Act [Chapter 6:06]”, but does not reflect in the Founding Affidavit that an application is being made for maintenance in terms of the Wills Act.  In any event, it is argued, the relief sought in terms of the Draft Order annexed to that application does not make any reference to any amount of maintenance being claimed by the Applicant.  First Respondent correctly points out, in my view that the form of the application is guided by the provisions of Rule 227 (2) (a) of the High Court Rules, 1971, which provides as follows:-

            “Every written application and notice of opposition shall –

            (a)        state the title of the matter and a description of the document concerned.”

            The First Respondent avers that the form and content of the application before the court is irregular, and must be struck out as being fatally defective.  I do not agree that the irregularity complained of goes to the root of the substance and form of the application.  The Applicant is entitled to be heard on the merits and there is no prejudice to the First Respondent.  I would, accordingly dismiss the point in limine.

The merits

The Applicant claims in the Founding Affidavit that she entered into an unregistered customary law union with the late Manuel Arthur Da Silva sometime in 1990.  The same averment is boldly asserted in the Applicant’s Heads of Argument.  Applicant has chosen not to place before the court any evidence whether verbal or written to prove that indeed there existed a customary marriage between Applicant and the late Manuel Arthur Da Silva.  It is not entirely clear why the Applicant took it for granted that the court would on her mere say so agree that there existed such a customary union.  It has not been disputed that Applicant is of mixed race, colloquially referred to as “Coloured”.  The late Manuel Arthur Da Silva was of Portuguese nationality and European descent.    It is common cause that neither the Applicant, nor the deceased could enter into a customarily law union, and such a union would be alien to them.  African customary law unions are usually between persons of African descent and follow the rules and customs of African customary law.  The two parties, Applicant and the late Manuel Arthur Da Silva, could never by any stretch of imagination claim to have entered into a union in accordance with the customary practices and are therefore not subject to customary law.  Their relationship or union could never be elevated to a customary law union.  The Applicant has not provided the court with any evidence that the marriage between the parties was solemnized in terms of customary law.  There is no evidence that the late Manuel Arthur Da Silva undertook the requisite procedural requirements to solemnize a customary law union and no lobola was paid.

            The First Respondent’s legal practitioner referred the court to the case of Vuyisile Khanye v Sibongile Msipha No and Others HB 51/05.  The matter is relevant to the present case.  In that matter the Applicant could not provide any evidence as to the existence of a customary marriage.  The learned judge, NDOU J alluded to the fact that it was important to file affidavits from relevant parties such as aunts and go-betweens as proof of the existence of a customary marriage.  The learned judge also cited with approval the cases of Mtuda v Ndodzo 2000 (1) ZLR 710 (H), Ntini v Masuku HB 69/03, Muringaniza v Munyikwa HB 103/03 and Matibiri v Kumwe 2000 (1) ZLR 492 (H).  

            In casu the Applicant has failed to discharge the onus to prove on a balance of probabilities, that she entered into a valid customary law union with the late Manuel Arthur Da Silva.

            It follows, therefore, that once the finding has been made that the Applicant was not customarily married to the late Manuel Arthur Da Silva, the children born of such purported customary marriage are illegitimate.

            The Applicant has sought to place reliance on the provisions of section 18 (1) of the Wills Act which provides as follows:-

            “Effect of subsequent birth, legitimation or adoption of children on will

            (1)        If, after a testator has made a will-

            (a)        a child is born, of whom the testator is the mother or, the child being legitimate,

the father; or

(b)        an illegitimate child of the testator is legitimated or, in accordance with customary law, is legitimated or otherwise acknowledged or recognised as a child of its father; or

            (c)        the testator adopts a child in accordance with the law relating to adoption;

then, unless the will makes some other provision for the child or unless it clearly appears that the testator intended otherwise, the child shall be entitled to the following benefits from the testator’s estate –

(i)         if the will makes no provision for any child of the testator, the child shall be entitled to any benefit that he would have received if the testator had died intestate; or

(ii)        if the will makes provision for any other child or children of the testator, the child shall be entitled to the same benefits as, or to benefits of equivalent value to, those that are receivable under the will by –

A.        the other child or children, where there is only one such other or where the will treats all such other children equally; or

B.        the other child or other children, as the case may be, who receive the benefits of smallest value, where the will treats the other such children differently.

2.         The benefits payable in terms of this section to a child referred to in paragraph 9a), (b) or (c) of subsection (1) shall be deemed to be –

(a)        a legacy payable under the will concerned, if the will makes no provision for any child of the testator or if the will provides for a legacy to be paid to each other such child or to the child who receives the benefits of smallest value, as the case may be:”

            The Applicant has made the bold allegation that all the five children were fathered by the late Manuel Arthur Da Silva without providing any evidence save that two of the children, namely, Trent Da Silva and Eliza Da Silva have birth certificates in which their last name is recorded as Da Silva.  As provided in Section 18(1) of the Wills Act, an illegitimate child can only be entitled to benefit from the testator’s estate where that illegitimate child of the testator is legitimated.  It is now settled law that the fact that the father’s name appears on the child’s certificate does not mean that the father has any rights of guardianship or custody.  Needless to say that, the fact that the father’s name appears on the child’s birth certificate does not have the effect of legitimating the child.  See the case of Katedza v Chunga and others HC 50/03.  The Applicant did not attempt to explain how the children born out of the union with the late Manuel Arthur Da Silva were legitimated.  It ought to be noted that in terms of our law, the natural father may adopt the child or make application for guardianship under the Guardianship of Minors Act [Chapter 5:08].  

            In casu, notwithstanding the fact that the late Manuel Arthur Da Silva may have maintained the children he had with the Applicant, and that two of the children’s birth certificates bear the surname of their father, there is no indication that the late Manuel Arthur Da Silva undertook to take any lawful steps recognized under our law to legitimate the children.  I am satisfied that on the facts presented by the parties, the Applicant’s illegitimate children have not been legitimated for the purposes of section 18 (1) of the Wills Act.

            I have no difficulty in concluding that the Applicant has failed to prove that she entered into a customary law union with the late Manuel Arthur Da Silva and consequently any children born out of such a union were illegitimate children.

            In the result the children born out of the union between Applicant and the late Arthur Da Silva are not entitled to inheritance in terms of Section 18 (1) of the Wills Act.

            I, therefore, dismiss the Applicant’s claims with costs.

Zimbabwe Women Lawyers Association, applicant’s legal practitioners

Messrs Webb Low and Barry, 1^st respondent’s practitioners