ZAWAIRA v NYAMUPFUDZA & ORS 2011 (2) ZLR 375 (H)

Flynote

Administration of estates — customary law — application — person married under general law — when such person's estate may be dealt with according to customary law

Customary law — application — when a person is subject to customary law — person married under general law — what must be shown for customary law to apply

Succession — intestate — heirs ab intestato — children born out of wedlock — general law and customary law positions — children born out of wedlock sired by father married under Marriage Act — no purported customary law unions with mothers of such children — such children not entitled to succeed ab intestato

Headnote

The deceased married his wife in terms of the Marriage Act. Six children were born of the union. In addition, the deceased fathered 10 children out of wedlock, by different mothers. He did not purport to marry any of those women. He died intestate. The executor lodged with the Master a second and final administration and distribution account, in terms of which he distributed the estate equally to the surviving spouse and all the children of the deceased. The applicant, one of the sons of the marriage, lodged an objection with the Master, contending that in terms of the general law children born out of wedlock cannot succeed ab intestato to their father or father's relatives. The Master dismissed the objection on the grounds that the laws of succession in this country treat all children of the deceased as being equal. In this regard he cited ss 3 and 3A of the Deceased Estates Succession Act [Chapter 6:02] and referred to s 10 of the Deceased Persons Family Maintenance Act [Chapter 6:03] as further

support for his contention that there is no longer any distinction between children born out of wedlock and those born in wedlock.

The applicant sought a declaratory order that only the children of the deceased who were born in wedlock were the legitimate intestate beneficiaries.

Held, that under the general law, illegitimate children cannot succeed ab intestato to their father or their father's relatives; similarly, the father and his relatives cannot succeed ab intestato to the illegitimate children. The issues of succession under general law would be dealt with in terms of the Deceased Estates Succession Act. The customary law position, on the other hand, is that all children, regardless of whether they were born in wedlock or out of wedlock, are entitled to benefit from their late father's estate as "beneficiaries". The issue of succession under customary law is governed by the Administration of Estates Act [Chapter 6:01]. For Part III of that Act to apply, it must be shown first that the deceased was subject to customary law. Section 68G of the Act creates a presumption that the general law of Zimbabwe applies to a person who, at the date of his death, was married in accordance with the Marriage Act. For that presumption to be rebutted, the respondents would have to show that, despite the deceased having married in terms of the general law, the surrounding circumstances were such that he was subject to customary law. Under s 3 of the Customary Law and Local Courts Act [Chapter 7:05], customary law applies in a civil case where, inter alia, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. Section 3(2) defines "surrounding circumstances" as including, inter alia, the mode of life of the parties and the relative closeness of the case and the parties to the customary law or the general law of Zimbabwe. The fact that the deceased sired ten children out of wedlock with different women did not show that he was subject to customary law. Siring children out of wedlock with various women is not peculiar to people subject to customary law. Children born of a customary law union contracted before a civil marriage could be regarded as beneficiaries in terms of s 68(3) of the Administration of Estates Act [Chapter 6:01], but in this case the deceased was already married in accordance with the Marriage Act when he associated with other women and sired the 10 children out of wedlock. Such associations did not purport to be customary law marriages, but even if they were customary law marriages, they came after the civil rites marriage and so they could still not be valid marriages for purposes of Part III of the Act. Accordingly, the children of the deceased born out of wedlock were not legitimate intestate beneficiaries of the deceased's estate. However,

those classed as dependants might have recourse to the Deceased Persons Family Maintenance Act.