UWE VON AHN

versus

ALICE DZVANGAH N.O.

and

NANCY KADANDARA

and

MASTER OF THE HIGH COURT N.O.

and

THE REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 30 May and 18 September 2011

Family Law Court

Opposed Application

J. Mafusire, for the applicant

P. Makuwaza, for 1^st & 2^nd respondents

No appearance for 3^rd & 4^th respondents

            MAWADZE J:  This is an opposed application for a declaratur wherein the applicant seeks an order in the following terms:-

            “IT IS DECLARED AND ORDERED AS FOLLOWS:

1. All assets acquired whether jointly or separately by the applicant and his deceased wife the late Susan Von Ahn (nee Hlongwane) who died at Harare on 15 January 2010 shall be amassed into one joint estate.     
2. Within thirty (30) days from the date of this order, or such longer period not exceeding thirty (30) days as the third respondent may allow, the first respondent shall file with the third respondent an inventory of all the assets of the joint estate comprising all the property, movable or immovable, corporeal or incorporeal and including but not limited to all the rights, title and interest in any such property such as rent or any other income.
3. After approval by the third respondent of the inventory aforesaid, the second respondent shall within ten (10) days thereof or such extended period not exceeding ten (10) days as the third respondent may allow, nominate, appoint or instuct valuators from the list of valuators kept and maintained by the third respondent and direct and cause them to valuate the joint estate and the costs thereof shall be part of the costs of the administration of the joint estate.
4. Following the valuation the joint estate aforesaid, the first respondent shall prepare the First and Final Distribution Account in the joint estate in the normal manner in terms of the Administration of Estates Act [Cap 6:01] and bequeath to the applicant so much of the assets, including cash, as would constitute not less than five eights (5/8) of the joint estate.
5. The cost of this application shall be assessed on an attorney client scale and shall constitute part of the costs of the administration of the joint estate, provided that if any person opposes the application the costs shall follow the event”.

The background of facts of the case are in order.

The applicant is a German national aged 65 years and on a resident permit in

Zimbabwe. Applicant is a pensioner and now a widower.

            The first respondent is cited in her capacity as the Executrix testamentary in the estate of the applicant’s late wife Susan Von Ahn (nee Hlongwane) a Zimbabwean national who died at Harare on 15 January 2010.

            The second respondent aged 50 years is applicant’s step daughter born to applicant’s late wife from a previous relationship. She is married and has a family of her own. She is also the sole heir to the applicant’s late wife’s estate in terms of the last will and testament executed in Harare on 20 December 2009.

            The third respondent, the Master of the High Court of Zimbabwe and the fourth respondent the Registrar of Deeds are both cited in their official capacities.

            The facts giving rise to this application can be summarised as follows:-

            The applicant and his late wife Susan Von Ahn (nee Hlongwane) married in Germany in terms of German law on 23 July 1977 where the applicant was domiciled. The marriage was not blessed with any children. The couple lived in Germany until 2004 when they immigrated to Zimbabwe after their retirement. The movable property acquired by the couple according to the applicant which include inter alia household goods, farming implements, industrial equipment and other assets was shipped to Zimbabwe.

            The relevant annextures filed by the applicant are annextures F a bill of landing, Annexture E Zimbabwean Customs Declaration and Annextures G1 to G9 an inventory of goods shipped to Zimbabwe. It is applicant’s contention that the couple jointly owned substantial amounts of money invested in off shore accounts with the Standard Chartered Bank which accounts applicant can now not access as they are on his late wife’s name.

            It is the applicant’s contention that the couple also acquired immovable property in Zimbabwe which property is also registered in his late wife’s name. The applicant’s explanation is that he got erroneous advice that as a foreign national he could not have immovable property registered in his name or the joint names with his wife. The properties in issue are:-

1. Two adjacent plots each 1364 m², stand 282 and 283 of Lot 22 Block D Avondale West Harare brought in 1980 when the couple was still in Germany and later consolidated into one title 6315/03. There is a cottage built also on this property from which the second respondent collects rentals.
2. Stand No. 37 measuring 2072 m² known as 12 Kenny Road Avondale West, a luxurious double story four bedroomed house with lockable garage and workers quarters, deed of transfer number 343/93 and was bought in 1992.
3. No. 20 Wicklow Road Avondale West measuring 793 m² a 3 bedroomed house with separate cottages deed of transfer No. 1843/2000. There is also a nursery on this property which is being rented out. 

Applicant in his founding affidavit contends that given the strong bond between him

and his late, the fact that all the immovable property was registered in his late wife’s name was of no concern to him because the couple’s assets were never classified as “his” or “hers” but always “theirs”. Likewise the bills of landing and customs clearance certificates were in his late wife’s name to facilitate easy access.

            The applicant’s late wife succumbed to cancer and passed on 15 January 2010. However before she died and on 24 December 2009 the applicant’s late wife drafted her last will and testament (Attached as (Annexture C) which was prepared by Muvingi, Mugadza & Mukome legal practitioners. This will bequeathed the wife’s entire estate to her daughter the second respondent. The validity of this will is not in issue. Applicant however contends that his wife’s will should be construed as relating only to the one half (1/2) of the joint estate that she owned by virtue of German law being the law of matrimonial domicile.

            It is the applicant’s contention that under German law which governs their marriage and in the absence of a pre or ante nuptial contract such a marriage is in community of property. In support of this position the applicant attached to his founding affidavit Annexture ‘Q’ a declaration by the German Embassy in Harare and Annextures R and R1 a legal opinion by a practising German attorney.

            In the founding affidavit paras 17.1 to 17.9 the applicant outlines what he perceives to be the position of the German law which governed his marriage to the late wife and their proprietary rights. According to the applicant therefore when his late wife bequeathed her entire estate to the third respondent it could only have been in respect of her one half (1/2) or four eights (4/8) of the joint estate. Applicant contends that according to German law he is entitled to the other half of the joint estate and that since his late wife disinherited him in terms of the will he can only lay claim to a quarter (1/4) of her half (1/2) of the joint estate which is one eights (1/8) on the basis of the principle of forced heirship in terms of German law. All in all therefore the applicant claims that he is entitled to five eights (5/8) of the joint estate and that his late wife could only competently bequeath the balance of three eights (3/8) of the joint estate to her daughter the second respondent as per his late wife’s will.

            The first and second respondents strongly opposed the applicant’s claim of what he perceives to be his share of the joint estate.

            Both the first and second respondents raised some preliminary points which I now proceed to dispose of.

1. That the application before the Court is premature.The first and second respondents’ view is that the applicant should have waited for the drawing up of the final liquidation and distribution account before seeking a declaratory order in the aforementioned terms. I am not persuaded by this argument at all. In my view the applicant properly acted in terms of s 43 of the Administration of Estate Act [Cap 6:01] which provides as follows:-

“43 Public notice by executors to creditors and others to lodge their claims.

Every executor shall, so soon as he has entered on the administration of the estate, forthwith cause a notice to be published in the Gazette and in some newspapers published or circulating in the district which the deceased ordinarily resided, calling upon all persons having claims due, or not yet due, as creditors against the deceased or his estate to lodge the same with the executor within such period from the date of publication thereof as is therein specified, not being less, save and except as in section sixty-six is provided, than thirty days or more than three months, as in the particular circumstances of each case is by the executor deemed proper”.

It is common cause that when the first respondent proceeded to act in terms of  s

43 of the Administration of Estate Act [Cap 6:01] the applicant advised the second respondent of his claim. The second respondent as per correspondence filed of record (Annextures S1 to S 10) took a clear and an unambiguous stance that all the immovable assets of the spouses belonged to the applicant’s late wife and that the will in issue was not confirmed to one half (1/2) of the so called joint estate. This response from the first respondent and the second respondent left the applicant with no option but to seek a declaratory order. It is disingenuous to suggest that the applicant should have waited for the drawing up of the final distribution and liquidation account to lodge whatever claim he would have. Such a course of action would serve no purpose as it would be akin to the applicant closing the door after the horse has bolted or seeking shelter after being already soaked and drenched in rain. My finding is that the application is properly before the court and was not made prematurely.

1. That there is a conflict of interests which justifies recusal of the applicant’s legal practitioners

It is my humble view that this allegation is unfounded when one considers the

facts of the matter which facts are common cause between the parties. While it may be true that the applicant’s late wife once approached Mr Mafusire’s partner in Scalen & Holderness and asked him to draft a will the fact of the matter is that the last will and testament of the late Susan Von Ahn was not drafted by Scalen & Holderness but by Mavingi, Mugadza & Makome legal practitioners. It is also important to note that the will in question is not in dispute. It therefore has not been shown in any useful manner by the first and second respondents’ that Mr Mafusire for the applicant acquired information which could be used to the detriment of the interests of the deceased or the first and second respondents so as to result in real mischief and prejudice to them. See Pertsilis v Calcaterra & Anor 1999 (1) ZLR 70 (H) and 1.Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd & Ors; 2. Turner and Sons (Pvt) Ltd v Zambezi Paddle (Pvt) Ltd & Anor 2006 (2) ZLR 353 (H).  

1. That the marriage between the applicant and late wife was one of convenience

This bold allegation by the first and second respondents is not supported by the

facts of the case. I am rather inclined to accept the applicant’s rather strong language when he described this allegation as reckless, abnoxious and patently indecent especially in relation to the second respondent his stepdaughter. It is common cause that the marriage between the applicant and his late wife lasted for 33 years. The couple lived as husband and wife in Germany from 1977 to 2004. It cannot be argued that this marriage was not consummated. When the couple came to Zimbabwe in 2004 they stayed together for 6 years and were only separated through the cruel act of death. There is therefore no basis to suggest that this was a troubled marriage or that it was a marriage entered into for the primary purpose of evading the immigration laws in Germany or Zimbabwe or that the couple had no intention of living together as husband and wife. See Jesse v Chief Immigration Officer & Ors 1996(2) ZLR 720 and Hambly v Chief Immigration Officer 1998 (2) ZLR 285. In fact the applicant and his late wife lived up to their marriage vows – “till death do us part”.

            After dismissing the preliminary points raised by the first and second respondents I now turn to the merits of this application.  

            The first issue I shall proceed to deal with is the question of the relevant law which governs the proprietary rights of the applicant and his late wife. It is not in issue that the marriage between the applicant and his wife was solemnised in Germany (see extracts from the Germany marriage register D1 and D2 and declaration from the Germany Embassy in Zimbabwe referred to supra).

            It is now an accepted principle in the field of the international private law that where there is no ante nuptial contract, the proprietary consequences of a marriage are governed by the husband’s domicile at the time of the marriage. It has not been disputed that the applicant was domiciled in Germany at the time of the marriage.

            W. Ncube in his book Family Law in Zimbabwe – Harare legal Resource Foundation at p 163 had this to say:-

“It is a settled principle of Roman Dutch common law that the proprietary consequences of marriage are governed by law of the country of the husband’s domicile at marriage where there is no ante nuptial contract. This rule is absolute and admits of no exceptions so that the law of the husband’s domicile at time of marriage determines the proprietary regime of the spouses for all the time ………….. It would not matter that the spouses intended to acquire a domicile different from that of the husband at the time of the marriage. The new intended domicile is irrelevant”.

The learned author also makes reference other renown authors like CF Forsyth –

Private International Law – Modern Roman Dutch Law Including the Jurisdiction of the Supreme Court 3^rd Edition, Juta at p 259 and Corbett, Hahlo, Hofmeyr & Khan: The Law of Succession in South Africa Juta & Co at p 619.

            In case of Lafontant v Kennedy 2000 (2) ZLR 280(S) at 283 McNALLY JA while dealing with the property acquired stante matrimonic had this to say:-

“In Roman Dutch Law the proprietary consequences of a marriage are governed by the law of the husband’s domicile at the time of the marriage. See Frankel’s Estate & Anor v The Master & Anor 1950 (1) SA 220 (A) at 223, 237, 238 and 251; Sperling v Sperling 1975 (3) SA 707 (A); Esterhuzen v Esterhuizen 1999 (1) SA 492 at 494C-D”.

I am satisfied that the law governing the proprietary consequences of the marriage

entered into between the applicant and his late wife in Germany is German law.

            The next issue to consider is the specific rule of law in Germany which would be applicable in resolving the dispute between the applicant and the first and second respondents. W. Ncube Family Law in Zimbabwe supra at pp 163-164 made the pertinent comment:-

“Once the above rule of private internal law has been used to determine the country whose law is applicable in resolving a matrimonial dispute the specific rule of law of that country which applies to such disputes must be determined”.

At this stage I may have to digress and address my mind to the argument by the first

and second respondents that all the property in issue constituting the so called joint estate especially the immovable property belong to the deceased since it is registered in the deceased’s name. While it is correct that the registration of immovable in one’s name is  proof of ownership of such property our courts have held that this would not preclude a spouse or any other person from claiming a legitimate and rightful share of that property in appropriate circumstances. See Takafuma v Takafuma 1994 (2) ZLR 103(S); Lafontant v Kennedy supra; Nyamweda v Georgias 1988 (2) ZLR 422 (S) and Young v Van Rensburg 1991 (2) ZLR 149(S).

In casuthe applicant is claiming what he deems to be his rightful share of the property and has explained the appropriate and legitimate circumstances thereof.

            The final point I shall now consider is whether the applicant has proved before the court the point in issue which is the proof of Germany law.

            I have already made reference to the relevant Annextures attached to the applicant’s founding affidavit which are:-

1.       Annextures D and D1 – extracts of Germany marriage Register).
   1. Annextures P and P1, - an affidavit and declaration of marriage dated 18 September 2010 by the applicant.
   2. Annexture Q dated 6 October 2010 by the Konsul and Frist Secretary of the Germany Embassy certifying applicant was married in community of property.
   3. Annexture R and R1 dated 28 September 2010 – a letter written to the applicant’s counsel by a fellow legal practitioner in Germany in a law firm called Hans – Jurgen Clausen giving an opinion on the point in issue, that is, the position of the German law which is foreign law.

Section 25 of the Civil Evidence Act [Cap 8:01] provides as follows:-

            “25 Foreign law

1. A court shall not take judicial notice of law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe”.

Section 24 of the Civil Evidence Act [Cap 8:10] defines what constitutes judicial

notice.

            Section 25 of the same act in subsection 2 to 5 provides as follows:-

            “(2)      Any person who, in the opinion of the court is suitably qualified to do so on

account of his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or entitled to act as a legal practitioner in that country or territory.

(3)        In considering an issue to the law of any foreign country or territory, a court may have regard to -

1. Any finding or decision purportedly made or given in any court of record in that country or territory where the finding or decision is reported or recorded in citable form; and

1. Any written law of that country or territory, and

1. Any decision given by the High Court or Supreme Court as to the law of that country or territory.  

(4)        The law of any foreign country shall be taken to be in accordance with a finding or decision mentioned in para (a) subs (3), unless the finding or decision conflicts with another such finding or decision on the same question.

(5)        For purposes of para (a) of subs (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report or transcript or document had had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe”.

Mr Mafusire for the applicant submitted that the evidence on Germany law on the

point in issue has been sufficiently provided for through the document from the Germany Embassy in Zimbabwe and in form of a letter written to him by a practising attorney in Germany who should be deemed to be an expert.

            I am not convinced that the applicant has or a balance of probabilities proved the position of the German law on the point in issue. The documents produced by the applicant fall far short of the requirements of s 25(3) (a) to (c) of the Civil Evidence Act [Cap 8:01]. Although such requirements are not mandatory they give useful guidance to the court. I am not persuaded by the fact that the document from the Germany Embassy in Zimbabwe (Annexture Q) proves the position of German law on the contentions issue. While Annextures R1 and R, a letter from a practising attorney in Germany may shed some light on the German law on explained therein, the letter itself fall far short of proving the position of the German law and fails to meet the requirements of s 25(3) (a) to (c) of the Civil Evidence Act. Annexture R and R1 are merely letters. To start with the author does not even state his or her qualifications and experience as a practising attorney. The opinion of this practising attorney is not supported by any relevant material like German case law, statutes, text books or German Common Law. The format of the letter and its contents are of such a nature that this court can hardly put reliance on it as sufficient proof of German law on the point in issue. I am therefore not satisfied that the applicant, despite being aware of the need to prove German law on the point in issue, has on a balance of probability proved the specific rule of law in Germany which governs the proprietary consequences of the applicant’s marriage. A material dispute therefore remains unresolved as to the exact position of German law on the point in issue.

            I have no doubt in my view that the German law governs the proprietary  consequences of the applicant’s marriage. While I am not inclined for reasons already given, to grant the declaratory order it would be grossly unjust to dismiss this application on this point alone. Applicant would be rendered destitute without fully ventilating his rights and entitlement. Even if the court was to take a robust and common sense approach it would not resolve the point in issue as regards the position of German law. An injustice would be done to the applicant at this stage. The first and second respondents have not helped matters as no attempt was made to find the position of German law on the point in issue. It is therefore only fair and just to refer this matter to trial so that proper and sufficient evidence on the position of the German law on the point in issue can be led.

            Accordingly it is ordered that:-

1. Case No. HC 7997/10 be and is hereby referred to trial.
2. The court application shall stand as summons and notice of opposition shall stand as notice of appearance to defend.

1. The applicant shall file a declaration within ten (10) days of this order and thereafter the matter shall proceed in terms of the rules

1. Costs shall be costs in the cause.

Scalen & Holderness,applicant’s legal practitioners

Sinyoro & Partners,1^st & 2^nd respondents’ legal practitioners