MUJAWO v CHOGUGUDZA 1992 (2) ZLR 321 (S)

Flynote

Succession — intestate succession — claims to estate by two sons — first son progeny D of unregistered customary union — second son progeny of later civil marriage in terms of Marriage Act [Chapter 37] — which son entitled to inherit estate

Interpretation of statutes — s 13 of the African Marriages Act [Chapter 238] — whether overridden by s 3 of the Customary Law and Primary Courts Act 1981.

Headnote

The deceased, who was over 18 years of age, had died intestate. The deceased was the natural father of two male children. The older boy was the progeny of an unregistered customary union with the respondent. The deceased had paid lobola for the respondent. His other son was the progeny of a civil marriage he had entered into with the appellant in terms of the Marriage Act [Chapter 37] after the deceased had paid lobola for the appellant. The union with the respondent had not been dissolved prior to this subsequent marriage, although when the second marriage was entered into the respondent was living a separate existence from the deceased.

Claims to the estate had been brought on behalf of their respective minor children by the appellant and the respondent. The trial court appointed the respondent's son as rightful heir. It decided that African customary law had to be applied to the devolution of this estate and it was the deceased's eldest son who was entitled to inherit his father's estate under customary law as the eldest son. The appellant appealed against this

Mayarara JA

decision. The Supreme Court set aside the Judgment of the trial magistrateand appointed the appellant's son as the rightful heir. In making this decision the court reasoned as follows.

Where an African contracts a marriage according to African law or custom s 69(1) of the Administration of Estates Act lays down that customary law will apply to the administration of the estate of the African.

On the other hand, the general law applies to marriages under the Marriage Act. Such a marriage is monogamous and thus incompatible with a potentially polygamous customary marriage. By contracting a later civil marriage under the Marriage Act [Chapter 37] the deceased had conclusively opted to have general law govern his legal relationships and the earlier customary law union had been dissolved by operation of law. The passing of the Legal Age of Majority Act 1982 had changed the status of both males and females over the age of 18. Since the passing of that Act the right of an adult male to contract a civil marriage under the Marriage Act is no longer derived from nor subject to the fetters contained in ss 12 and 13 of the African Marriages Act.

Although s 13 of the African Marriages Act [Chapter 238] lays down that the contracting by Africans of marriage in terms of the Marriage Act does not affect the property of the spouses and that, if that property is not disposed of by will, it shall devolve according to African law and custom, this section has been overridden by s 3 of the Customary Law and Primary Courts Act 1981. This section lays down the criteria to be used to determine whether customary law or general law is to be applied in civil cases. Applying these criteria, general law governed the present civil case and the case did not fall under s 69(1) of the Administration of Estates Act.

The estate of the deceased therefore should be administered and distributed in terms of s 26 of the Administration of Estates Act as read with the Deceased Estates Succession Act [Chapter 302]. The appellant was the "surviving spouse" in terms of both those pieces of legislation.

However, as under s 3(3) of the African Marriages Act [Chapter 238], the appellant's son was legitimatised, he was entitled to a child's share of the deceased estate in terms of the provisions of the Deceased Estates Succession Act [Chapter 302].