Judgment record
Ruvimbo Rebecca Chawasarira v The Master of the High Court & 2 Ors
HH 118-21HH 118-212021
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RUVIMBO REBECCA CHAWASARIRA
versus
THE MASTER OF THE HIGH COURT
and
FREDDY CHIMBARI
(In his capacity as Executor Dative
of the estate of the Late Richard Chawasarira)
and
CHIPO HWINDINGWI
HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 9 & 18 March 2021
Opposed application (review)
G Madzoka for applicant
Mr TS Nyawo for 3rd respondent
No appearance for 1st and 2nd Respondents
[1] TSANGA J: This is an application for review of the Master’s decision regarding the
resolution a dispute using s 68G of the Administration of Estates Act [Chapter 6:01] which
deals with whether customary law should apply to a deceased person’s estate. Having decided
that customary law should apply, the essence of the Master’s decision, (cited as the first
respondent in this matter), was to reduce the applicant’s civil marriage to a customary one in
accordance with s 68(4) of the Administration of Estates. This was on the basis that at the
time the civil marriage was contracted, the now deceased was married to the third respondent,
Chipo Hwindingwi, under customary law. The Master reached that conclusion upon a finding
of what was termed as the existence of a “semblance of a customary marriage” between the
third respondent and the now deceased. The review is brought in terms of s26 and 27 (1) (c)
of the High Court Act [Chapter 7:06] under the auspices of “gross irregularity in the
proceedings or the decision” in reaching that conclusion. There are three specific grounds of
review couched as follows:
1. Gross irregularity in the decision by the 1st Respondent in determining that there was a
semblance of a customary marriage between the deceased and 3 rd respondent despite
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the fact that there was no evidence to support that they had contracted a registered
customary law marriage.
2. The 1st Respondent acted without jurisdiction in reducing Applicant’s civil marriage
to a customary marriage in the absence of acceptable evidence of the existence of a
valid customary marriage between 3rd respondent and the late Richard Chawasarira.
3. Gross irregularity in the determination by the 1 st respondent in that he (sic)
improperly applied s 68G of the Administration of Estate Act [Chapter 6:01] by
determining that customary law applied to the administration of the estate whereas
Applicant and the deceased had a civil marriage governed by general law and of
which she was the sole surviving spouse
[2] Briefly stated, the applicant married the now deceased in a civil registered marriage in
1985. In 2001, her now deceased husband Richard Chawasarira suffered a stroke. This
ultimately necessitated her having to go to the United Kingdom to work and raise money for
his medical care and family support. She returned in 2002 when he suffered another stroke
but ultimately had to return to the United Kingdom again for the same financial reasons. Her
husband remained here. In 2010 he took a turn for the worse and ultimately succumbed to the
stroke. In 2010 when the deceased was critically ill, the third respondent, who had two
children with him moved in with him at his Milton Park residence to take care of him until
the time of his death. It was in winding up the estate by the second respondent, Freddy
Chimbari, that he formed the impression that customary law probably applied to the estate.
The services of the Master were then enlisted for a determination. The determination having
been in 2018, applicant sought and was granted condonation for late filing of the application
for review.
Determination of a dispute
[3] Section 68G spells out in the following terms the Act to be applied in determining a
dispute as to whether or not customary law applies in dealing with the estate of a deceased
person:
68G Determination of whether customary law applied to deceased person
(1) Section 3 of the Customary Law and Local Courts Act [Chapter 7:05] shall apply in
determining the question whether or not customary law applied to a deceased person for the
purposes of this Part:
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Provided that it shall be presumed, unless the contrary is shown, that—
(a) customary law applied to a person who, at the date of his death, was married in
accordance with customary law; and
(b) the general law of Zimbabwe applied to a person who, at the date of his death, was
married in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign
country, even if he was also married to the same person under customary law. (My emphasis)
The starting presumption therefore is that general law applies where the deceased had a civil
marriage and that customary applies where the deceased had a customary marriage.
Equally significant s 68G (2) spells out the procedural expectations in the following terms:
(2) Where there is a dispute among the beneficiaries of an estate as to whether or not
customary law applied to the deceased person for the purposes of this Part, the question shall
be referred to the Master, who shall determine it in the speediest and least expensive manner
consistent with real and substantial justice.
[4] The expectation is that the proceedings be dealt with in the least expensive manner in
accordance with real and substantial justice. The phrase real and substantial justice, at least as
used in s 68G (2), implies that it is the proceedings, procedurally, that do not have to be in
accordance with strict law. See R v Harmer 1906 TS 50 at 52 per Innes CJ. As for the
decision as to whether or not customary law applies, it is the duty of the Master to reach a
conclusion based on the law applicable using the assessment of the evidence led. In terms of s
3(1) (a) (iii) of the Customary Law and Local Courts Act, regard has to be had to the nature
of the case and the surrounding circumstances in deciding whether it appears just and proper
that customary law should apply. Surrounding circumstances also include mode of life,
subject matter and closeness of case to customary law or general law among others.
[5] It is against a determination held in accordance with the above provision that the
Master concluded using s 68(4) which will be discussed more fully, that the applicant’s
marriage should be regarded as a customary law marriage on account that the deceased was
married to the third respondent customarily when he contacted such marriage.
The Findings from the Master’s Determination
[6] The Master’s determination report shows that at least 25 people were in attendance
with some giving evidence that the deceased was married polygamously whilst others said
that when he ended his earlier customary unions he had contracted a civil marriage. In the
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report of that determination, the Master captured the third respondent’s submissions as
follows:
“Ms Chipo Claris Hwindigwi submitted that she got married in 1981 and had two children
with the deceased namely Tafadzwa and Tendai. She indicated that they had a registered
customary marriage and they acquired the Warren Park house together during their marriage.
She however indicated that she does not have a copy of the marriage certificate and the
Registrar General could not find same in their records. Ms Claris C Hwindingwi added that
they had some differences with the deceased in 1984 and he took her to her aunt who in turn
handed her over to her parents where she stayed from then. She further submitted that in 2002
they reunioned for the deceased would visit her and took her to the farm”.
[7] The determination report also records the Master’s findings of the overall surrounding
circumstances deduced from hearing oral evidence. In essence, it records that the deceased
initially married one Maidei Mandivanzira in 1978 until 1980. Thereafter he married Chipo
Hwindigwi in 1981 and had differences in 1984 resulting in her staying with her parents
having been surrendered by her aunt to her parents. It also captures that in 2002 they had
“reunioned” but stayed separately and that in 2010 she had moved in to stay with him at the
time of his death until he died. The Master also determined that the deceased had two other
women in his life but they were never married. The determination report also recorded in
terms of surrounding circumstances that in total the deceased had eight children from five
different women.
It concluded as follows:
“In view of the aforestated and for the purposes of s 68G of the Administration of Estate Act
[Chapter 6:01] the customary law should apply. There appears to be a semblance of a
customary marriage between the deceased and Ms Claris Chipo Hwindingwi for the marriage
was not procedurally cancelled and they lived together at the time of his death. The civil
marriage between Ruvimbo Chawasarira can therefore be reduced to a customary marriage
for it was acquired during the subsistence of a customary marriage. “
The legal arguments
[8] Mr Madzoka on behalf of applicant emphasised that for the Master to have
downgraded the applicant’s marriage in terms of s 68 (4) of the Administration of Estates Act
there must be proof that the two marriages existed at the same time. In this case, the Master
was said not to have made a definitive finding of a marriage but had referred to “a semblance
of a customary marriage”. His core argument was therefore that the Master had not applied
the law given the meaning of the word “semblance” which implies something a marriage as
opposed to a properly recognised marriage. The relevant provision was said not to authorise
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the Master to act on something of a marriage but to act where a genuine marriage existed at
the same time when the civil marriage was contracted. Mr Madzoka therefore argued that it
was improper for the Master to have resorted to s 68 (4) of the Administration of Estates Act
in concluding the dispute as the law says there must have been a marriage and not a
semblance of a customary marriage.
In her opposing affidavit to this application the third respondent averred that her
union was registered at the time that the applicant contracted a civil union with the now
deceased. She also averred that the deceased had not paid full dowry and had instead sought
her father’s blessing for the registration of the marriage. The payment of full dowry is itself
not a requirement for a valid customary union. She confirmed yet again that no record had
been yielded of the registered customary union at the relevant registry. What she now relied
on as proof of the existence of a marriage in opposing this application was instead a check list
from City of Harare which related to the allocation of a Warren Park house on the basis of a
customary law marriage. The house was subsequently sold by the deceased. She further
averred that applicant’s house in Milton Park had in fact been purchased with proceeds from
the sale of this Warren Park home.
Her lawyer Mr Nyawo placed strong reliance in his heads of argument on s 68(3) of
the Administration of Estates Act whose essence is that an unregistered customary law
marriage is fully recognised at law for purposes of inheritance. He stressed that it therefore
mattered not that the marriage certificate could not be found at the registry. He further
highlighted s 68 (4) of the same act which permits the down grading of a civil marriage if,
when it was contracted, a customary union was extant with someone else. He also argued that
her customary marriage as was extant for the reason that she was not given a divorce token
“gupuro” to symbolise an end of their customary marriage.
[9] The issues for decision are whether the Master’s action of reducing the applicant’s
marriage to a customary law was irregular against the evidence presented. As stated in the
case of Kwaramba v Bhunu SC 46-12
“Generally speaking, an irregularity occurs when a judicial officer takes into account
factors that he should not take into account or fails to take into account factors he
should take into account in the process of the making of a determination the judicial
officer is seized with. An irregularity also occurs where the law is misapplied or an
incorrect procedure is followed.”
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See also Bridges & Hulme (Pvt) Ltd v Magistrate, Bulawayo & Anor 1996(1) ZLR 542 (HC).
The assertion being that the Master acted irregularly, the standard of review of the
decision reached is thus that of the correctness or otherwise of this action when upon hearing
the evidence, the Master downgraded the applicant’s marriage based on findings of ‘a
semblance of a customary marriage”. The three grounds for review are closely intertwined
and will thus be dealt with holistically.
THE LEGAL POSITION
[10] Section 68 (3) of the Administration of Estates Act recognises a marriage at
customary law as valid even if it has not been solemnised in terms of the Customary
Marriages Act [Chapter5:07]. However, such marriage is not recognised as valid if when it
was contracted either of the parties was married to someone else in accordance with the
Marriage Act [Chapter 5:11]
[11] In terms of s 68(4) where a party contracts a civil marriage whilst being married to
some else in accordance with customary law, whether solemnised or not, then that civil
marriage is regarded as a customary law marriage.
It reads as follows:
(4) A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of
a foreign country under which persons are not permitted to have more than one spouse
shall be regarded as a valid marriage for the purposes of this Part even if, when it was
contracted, either of the parties was married to someone else in accordance with
customary law, whether or not that customary law marriage was solemnised in terms
of the Customary Marriages Act [Chapter 5:07]:
Provided that, for the purposes of this Part, the first-mentioned marriage shall be
regarded as a customary-law marriage.
[12] A customary law marriage has distinct processes and procedures some of which are
recognised and incorporated in the Customary Marriages Act [Chapter 5:07] which governs
registered customary marriages. This includes issues such as the liberty to enquire whether
marriage consideration (lobola) has been paid as it plays a key role in defining a customary
marriage. (See s 6 of that Act). From proceedings attendant upon customary marriages, the
essential requirements of a valid customary marriage can essentially be distilled to consent to
the marriage by the parents of both parties as well as the parties themselves, the payment of
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lobola and its attendant trimmings, the transfer of the woman to her new husband’s family.
Equally the parties must not already be married under civil law if they wish to contract a
customary law marriage.
FACTUAL AND LEGAL ANALYSIS
[13] It was not in dispute that at one time the deceased indeed had a customary marriage
with the third respondent. However, the third respondent was equally clear as captured in the
Master’s determination, that due to differences she had with the deceased, she had been sent
to her aunt and her aunt had returned her to her parents. The fact that when she was sent back
to her aunt she was not given a divorce token is certainly not part of the report of the
determination that was held. Suffice it to say the facts speak for themselves that there had
been a termination or severance of the customary marriage at the time that the civil marriage
was entered into by the deceased with the applicant. Whilst conceding to having parted ways
in 1984 and being sent back by the deceased to her aunt and then her parents, acts which are
in themselves which are strongly indicative of the end of an unregistered customary union,
the third respondent spoke of reunion in 2002. This would come some 17 years after she had
been sent back by the deceased through her aunt as intermediary. More importantly, the
purported reunion would have been sixteen years after the deceased contracted a civil union
with the applicant. The word reunion in itself connotes a “break” and being brought together
again save that in this case the parties could not be brought together again in the form of a
recognised customary marriage because the now deceased, for all intents and purposes,
severed the customary union with the third respondent with very graphic actions and then
thereafter validly contracted a civil union.
Just as with the customary marriage itself, an aunt plays an important role in the dissolution
of a customary law marriage. Whilst the Master concluded that the marriage was not properly
dissolved it is unclear where she obtained that evidence from. It was not in dispute that she
was sent back using her aunt. There was no evidence led to suggest that the procedures
followed were not proper.
[14] What the third respondent emphasised, as gleaned from the determination report
under scrutiny, was that they had a registered marriage which had not been dissolved and not
the issue of a divorce token. Whilst the third respondent nailed her mast on having contracted
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a registered customary law marriage there was no evidence by her own admission to support
her assertion that she ever had a registered marriage. No such record could be found at the
relevant office. The fact that the marriage registry could not find a copy of the alleged
registered customary law marriage points to the likelihood that the marriage was never
officially solemnised as claimed.
[15] The law is clear in s s68 (4) on when a customary marriage can result in the reduction
of a civil marriage to a customary one. The customary marriage must have been in existence,
and, needless to say, must be supported by clear evidence that at the time such a person
purported to enter into a civil marriage, a customary marriage was still subsisting. In the
absence of any evidence of a customary law marriage continuing or being in existence at the
time the civil marriage was entered to, an estate falls to be governed by general law. This is in
terms of the presumption in s 68G that general law shall be presumed to apply to a person
with a civil marriage.
The finding of a “semblance of a customary marriage” is not the standard that constitutes a
customary law marriage. What the law requires is not a shadowy semblance of a customary
law marriage but a customary law marriage proper whether registered or otherwise. The use
of the word semblance is itself telling. Semblance according to the Cambridge English
dictionary connotes “the outward appearance or apparent form of something especially when
the reality is different.” The free on-line dictionary gives the word’s meaning as “an outward
or token appearance or form that is deliberately misleading’’. In other words, if there is a
semblance of something then it is an assumed or unreal appearance. That is not what the law
requires as our law presently only recognises three types of marriages, namely the registered
civil marriage, the registered customary marriage, and, for limited purposes the unregistered
customary law marriage.
[16] The facts as captured at the determination did not speak of a continuing customary
marriage in existence at the time the civil marriage was registered but instead categorically
spoke to a customary union which had ended. It therefore follows that without any evidence
of an existing customary law marriage in place at the time the deceased married the applicant,
the Master most certainly erred in legally reducing the applicant’s marriage to a customary
one under s 68(4) of the Administration of Estates Act. Equally, there was gross irregularity
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on the Master’s part in determining that customary law applied to the administration of the
estate when Applicant and the deceased had a civil marriage governed by general law.
[17] Whilst applicant seeks that the respondents pay costs on a higher scale for opposing
the application, this court disagrees. The Master may have erred but was certainly carrying
out administrative duties faithfully. Furthermore, the complications that arose were certainly
not of the Master’s making and neither can the third respondent be asked to take the blame
for the circumstances. There was no appearance by the Master and the executor dative
indicating both agree to be bound by the decision in this application.
[18] It is therefore ordered that:
1. The application for review be and is hereby granted.
2. The 1st Respondent’s determination dated 17 October 2018, reducing the Applicant’s
civil marriage to the late Richard Chawasarira to a customary marriage, be and is
hereby set aside
3. The costs of this application for applicant and third respondent shall be borne by the
2nd Respondent in his capacity as executor dative of the deceased’s estate.
Mangwana and Partners: Applicant’s Legal Practitioners
Nyawo Ruzive Legal Practice 3rd Respondent’s Legal Practitioners