Tessy Zvemisha v Eunice Zvemisha and Marita Makahwi and Master of the High Court N.O (DR3175/95) and Registrar of Deeds N.O

### Preamble
1
HH 523-25
HCH 2187/22
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TESSY ZVEMISHA

versus

EUNICE ZVEMISHA

and

MARITA MAKAHWI

and

MASTER OF THE HIGH COURT N.O (DR3175/95)

and

REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

TSANGA J

HARARE; 9 September 2025

(Opposed Matter: Requested for reasons).

Applicant in person
B Majamanda and T Sibanda, for 1st and 2nd respondents
No appearance for 3rd and 4th Respondents

TSANGA J:   This was an application heard on 5 June 2025 for a declaratory order and ancillary relief, which I dismissed against the following background facts. The applicant and her deceased husband, Kennedy Zvemisha, customarily married in 1972 and registered their customary marriage on 12 January 1990. They had five children together.

In 1985, the deceased had acquired, through a cession in his name, stand 2957 Dangamvura Township, Mutare. The applicant and her children were listed as dependants. The family had moved there in 1988. In 1989, the deceased also customarily married the first respondent, Eunice Zvemisha, and registered that union in 1992. They had two children. According to the applicant, Eunice the second wife lived in Chiredzi at all times whilst she was the one residing at the Dangamvura property.

The title deed to the Dangamvura property was later processed on 5 July 1995, again in the deceased’s name. The quest for a declaratur herein stemmed from the fact that for reasons only known to the deceased, who passed away on 30 September 1995, he executed a will in 1993 in which he bequeathed the Dangamvura property not to his first wife who was staying there with the children but wholly to his second wife, Eunice Zvemisha. She, in turn, had then sold the property to the 2nd Respondent, Marita Makahwi. Thus, the declaratur sought by the applicant was on the basis that the deceased had disinherited her of her alleged “rightful share” in that property. Specifically, she sought to invalidate and set aside that document registered with the Master as the last Will and Testament of the late Kennedy Zvemisha. She also sought to have him declared as having died intestate and for anything done pursuant to the will to be set aside. In particular, the transfer of Stand number 2957 Dangamvura Township of Dangamvura, Mutare, in favour of the first and second respondents under Deeds of Transfer number 8277/99 and 541/21 respectively were central to the actions she wanted set aside. She also sought that the Registrar of Deeds be directed to cancel in its records Deeds of Transfer registration numbers 8277/99 and 541/21 made in favour of the first and second Respondents respectively. She equally wanted the estate reopened and a neutral executor appointed. She sought costs on a higher scale.

It was not disputed that following her husband’s death, the matter was adjudicated upon by the Mutare Regional Magistrates court way back in January 1999, in terms of which the applicant and her children were then given usufructuary rights over the property until the youngest child reached majority. That eventuality having come and gone, the applicant refused and still refuses to vacate the property despite the fact that the beneficiary of the property in terms of the will got transfer of the property and has long since sold it. The new owner also has title.  The property was transferred to the buyer in 2021.

Applicant’s major submission in her founding affidavit was that the will was unconstitutional and against the law and or public policy in that it practically disinherited her and her children of their home. It was said to be contrary to section 5 (3) (a) of the Wills Act [Chapter 6:06] which reads as follows:

“5. Power to make dispositions by will

(1) Subject to this Act and any other enactment, any person who has capacity in terms of section four to make a will may in his will—

(a) make provision for the transfer, disposal or disposition of the whole or any part of his estate; and

(b)…

(c)…”

The Supreme Court in Chigwada v Chigwada SC 188/2020 has since interpreted this provision fully. Where the party disposing of an asset by the will owns the property in question, the provision does not at all undermine freedom of testation as litigants had been made to believe in some High Court cases such as Chimbari NO v Madzima and Ors HH 325-13. In that case the court had held that s 5(3) (a) of the Wills Act prohibits a testator from disinheriting a surviving spouse. In Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) the  High Court had  also expressed the view that the purpose of s 5(3) (a) of the Wills Act was to cure the mischief by testators who wanted to disinherit their surviving spouses. (See also Majuru v Majuru HH 404-16). The Supreme Court rectified these misinterpretations of the provisions of s 5 (3) (a). The Chigwada decision makes it clear that the provision relates to jointly owned property and that the law does not oblige a testator to bequeath his or her property to the surviving spouse. As the Supreme Court clarified:

“Decisions of the High Court to the effect that a testator is, in the circumstances, bound to leave his or her property to the husband or wife, and, declaring testamentary disposition to the contrary to be void, are inconsistent with the law. They should no longer be followed.”

At the hearing, Mr Mucheche who was assisting the applicant on an informa pauperis basis, indicated that he had gone through the pleadings by previous practitioners who had handled the matter but due to limited time had not had a chance to explain to the applicant the implications of the Chigwada decision above. In light of the clear legal position on freedom of testation, Mr Mucheche sought that the matter be stood down with a view to explaining the legal position and filing an order by consent.

The parties failed to agree on vacating the property against a backdrop where the applicant has been in occupation without paying rentals since 2021, which is when the property was transferred to the second respondent. Mr Mucheche then recused himself from the matter, as he had appeared in Wakapila’s Est v Matongo NO & Ors 2008 (2) 43 (H) whose freedom of testation interpretation the court had upheld as embodying the correct legal position on freedom of testation.

The applicant did not meet the requirements for a declaratory and neither was this a case for the court to exercise its discretion. The deceased owned the property and of his own accord, he had bequeathed it to someone else. The applicant was therefore not a person with a direct or substantial interest in it as the law allows freedom of testation on property that one owns. Applicant had been given a usufructuary right with conditions that had been fulfilled. The property having been already transferred to its beneficiary and sold to someone else, the declaratur sought was purely academic against the backdrop where the law is now clear that exclusion of a spouse from property owned by the testator does not invalidate the will. The property having been registered solely in the deceased’s name and the legal position being clear on freedom of testation, the application for a declaratory held no merit. The second respondent was, however, willing to forego her costs as long as the applicant gave her vacant possession.

It was against this backdrop that the application was dismissed without costs with the consent of the second respondent and an order given that the applicant and her family should vacate the property by 30 June 2025.

Tsanga J:…………………………………………………….

Khupe and Majamanda Law Chembers, 1st  and 2nd Respondent’s Legal Practitioners