Tichaona Dera v F. Chimbari and Ishmael Shayamano and The Master of High Court

### Preamble
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HH 177-2013
HC 6398/10
TICHAONA DERA
versus
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TICHAONA DERA
versus
F. CHIMBARI
and
ISHMAEL SHAYAMANO
and
THE MASTER OF HIGH COURT

HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 17 MAY 2013

Opposed Application

P Kumbawa, for the applicant
J Ndhlovu, for 1st respondent
S Makopa, for 2nd and 4th respondents

GUVAVA J: The applicant seeks the following order;
“1. A declaratory order do hereby issue to the effect that the light of a surviving spouse to a matrimonial home as a personal light which dies with the holder.
2. A declaratory order do hereby issue to the effect that the right of Clara Mtokela to inherit the matrimonial home from the Estate late Kokerai Dera is not transmissible to Estate late Clara Mtokela.
3. A declaratory order do hereby issue to the effect that the first respondent identifies the correct beneficiaries to the estate late Kokerai Dera.
4. It is ordered that the first and second respondent pay the costs of suit at a legal practitioner and client scale, each paying the order to be absolved.”

The facts which have given rise to this application are as follows;
The applicant is the son of the late Kokerai Dera (the deceased) who died on 12 March 2003. He was survived by Clara Mtokela whom he had married in terms of the marriage
 Act [Cap 5:11]. He owned an immovable property known as 1245 Nyamuzihwa Crescent, Ruwa, Goromonzi District.

The deceased and Clara Mtokela did not have any children. On 1 December 2008, before the Estate of the deceased was wound up Clara Mtokela died. She left a will in which she bestowed her Estate to her sisters daughter Priscilla O. Wifeni, the fourth respondent in this matter.

The applicant was informed that the first respondent intends to award the immovable property being stand 1245 Nyamuzihwa Crescent, Ruwa, Goromonzi District to the estate of the late Clara Mtokela.

The applicant, unhappy with the decision of the executor, has approached the court seeking the order which is outlined above.

The application is opposed by the first respondent who is the executor of the Estate of the deceased. He states in his opposing affidavit that Clara Mtokela died after more than 5 years after the deceased. She was therefore entitled to inherit the deceased’s property and to deal with it as she placed in her will.

Priscilla O Wizeni, although not originally cited as a party applied for joinder which was duly granted by this court. She too filed an opposing affidavit in which she essentially agrees with the executor of the deceased.

In my view the law relating to this matter is settled.

The deceased and the late Clara were married in terms of the Marriage Act [Cap 5:11]. The general law thus applies to their Estate. The deceased Estates Succession Act [Cap 6:02] provides for the regulation of the estate of a person who is governed by general law.

Section 3A of the Act provides as follows:-

“The surviving spouse of every person who, on or after the first November 1997, dies wholly or party intestate shall be entitled to………from the free residue of the Estate.

a) The house or other domestic premises in which the spouses or the surviving spouse as the case may be lived immediately before the person’s death and b) The household goods and offices which, which immediately before the person’s death, were used in relation to the house or domestic premises referred to in paragraph (a).

Where such house, premises, goods and effects form part of the deceased person’s Estate. It is not in dispute that the deceased and the late Clara resided in the Goromonzi property during the life time of the deceased. Thus in terms of the above provision, the property should have been awarded to the late Clara following the death of the deceased.

The applicant has submitted since the property had not been transferred to the late Clara before her death she does not became entitled to it. He argues that all that the late Clara had was a personal claim against the estate of the deceased and that it therefore died with her death. I however do not agree with the applicant’s submission... D. Meyer – Owitz in his book “The Law and Practice Administration of Estates” at p 204 states as follows:-

“The intestate heirs must be determined at the date of death of the deceased. So for example, if any property falls to be distributed, at any time after the death of the testator on intestacy the intestate heirs are those who would have taken a intestacy at his death, even though they had died before the property becomes available for distribution in intestacy.

Clearly therefore the laws of intestacy follow a specified pattern which is ascertainable and which does not change merely because the heir has died before the property has been transferred to their name.

The first respondent is clearly right in taking the approach that the property of the late Kokerai Dera was inherited by his wife Clara and she was therefore at liberty to dispose of the property as she wished.

Accordingly the application is hereby dismissed with costs.

C. Nhemwa & Associates, Applicant’s Legal Practitioners
Hungwe & Partners, 2nd respondent’s Legal Practitioners
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