SEVA & ORS v DZUDA 1992 (2) ZLR 34 (S)

Flynote

Succession — s 7 of African Wills Act [Chapter 240] and s 24(a) of Wills Act 12 of 1987 — rights of heir at customary law to immovable property not devised by will

Headnote

A man died intestate. He was survived by two wives to whom he was married according to customary law and had four children. The wives and children had lived in the deceased's house in Mbare and they continued to live in his house after his death. The eldest son of the deceased was declared heir to his father's estate and thus inherited his father's house in Mbare. He then sold the property to the respondent. When the wives and children refused to vacate the premises, the buyer sought a court order of eviction.

Held, that the former African Wills Act governed the situation at the time of the deceased's death. In terms of s 7 of the that Act the heir at customary law of any deceased person to whom customary law was applicable inherited any immovable property not devised by will in his individual capacity. (Section 24(a) of the Wills Act repealed s 7 of the African Wills Act and introduced s 6A into the Primary Courts Act. However under s 6A the heir still inherits in his personal capacity.) Under s 7 theheir does not hold such property in trust for any members of the family of the deceased. He succeeds to it as if it were his own property and is entitled to exercise all the rights of an absolute owner in respect thereof.

Held, further, that as the concept of private ownership of immovable property was alien to African customary law, questions relative to such immovable property fell to be determined by the general law and if an African male diesintestate his immovable property devolves on his heir as determined by general law.

Held, further, that as the eldest son had inherited this house in his personal capacity, he had the right to dispose of it as he wished. He was entitled to sell it to the buyer, as he had done. The wife and remaining children had no enforceable rights against the buyer. The only rights they had, if any, were against the eldest son. They therefore had no defence to the action for eviction brought by the buyer.