Anna-Mercy Munangatire v Noreen Chikaka (in her capacity as Executrix of the Estate of the Late Samuel Dick Munangatire) & 2 Ors

### Preamble
Judgment No. SC 143/20
1
Civil Appeal No. SC 82/18
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REPORTABLE  (134)

ANNA-MERCY      MUNANGATIRE

v

(1)     NOREEN      CHIKAKA (IN     HER     CAPACITY     AS     EXECUTRIX     OF     THE     ESTATE     OF     THE     LATE     SAMUEL     DICK     MUNANGATIRE)  (2)     GRACE     NYANDORO     (3)     THE     MASTER     OF     THE     HIGH     COURT     N.O

SUPREME COURT OF ZIMBABWE

GARWE JA, PATEL JA & GUVAVA JA

HARARE: OCTOBER 18, 2018 & OCTOBER 26, 2020

B Mtetwa, for the appellant

D C Kufaruwenga, for the first respondent

No appearance for the second respondent and third respondent

GUVAVA JA: This is an appeal against the whole judgment of the High Court dated 18 January, 2018 which dismissed the appellant’s application for a declaratory order. The appellant had sought an order in the court a quo in the following terms:

“1. The property known as No 36 Marlborough Drive, was the matrimonial home between applicant and her deceased husband Samuel Zachary Dick Munangatire.

The property devolves (sic) onto the applicant as  surviving spouse in terms of           ss 3 and 3A of the Deceased Estates Succession Act, [Chapter 6:02].

ALTERNATIVELY to 1 and 2 above;

3.  That the first respondent be and is hereby removed as the Executrix of the Estate (sic) of the Late SAMUEL ZACHARY DICK MUNANGATIRE.

4. That the third respondent appoint a replacement executor

within 7 days of service of this order on him.”

BACKGROUND FACTS

The facts of the matter are largely common cause.  The appellant was married to the late Samuel Zachary Dick Munangatire (the deceased) in 1970 in terms of the civil laws of the United Kingdom. They were both resident in the United Kingdom. Following their return to Zimbabwe and during the subsistence of the marriage, they in 1989 purchased a house namely, No. 36 Marlborough Drive Harare (hereinafter referred to as the “matrimonial home”). The matrimonial home was registered in the deceased’s name. Sometime during the 1990’s the deceased began an adulterous relationship with the second respondent. The appellant was dissatisfied with this state of affairs and instituted divorce proceedings in 1996. She however decided to return to the United Kingdom in 1998 before the divorce was finalised.

After the departure of the appellant the deceased and the second respondent began to cohabit at the matrimonial home. In 2001, the second respondent together with the deceased relocated to the United Kingdom and the second respondent’s brother remained resident at the matrimonial home. The deceased instructed his sister’s son to also stay at the matrimonial home in order to safeguard his interests.

As fate would have it, the deceased unfortunately passed away on                           12 November 2012. At the time of his death he was no longer cohabiting with the second respondent.

In 2013 the first respondent, an estates administrator, was appointed as the executrix dative of the deceased’s estate. Following first respondent’s appointment the first and final distribution account was prepared. The sole asset of the estate was the matrimonial home. The second respondent submitted a claim against the estate for improvements that she had effected on the property during the time that she cohabited with the deceased. She also submitted a claim for the maintenance of the two minor children which she had with the deceased. The amounts claimed, which were accepted by the first respondent was equivalent to the total value of the matrimonial home.

The appellant was dissatisfied with the distribution account. This gave rise to her filing an application for a declaratur set out above.  During the course of the hearing the appellant abandoned the alternative relief sought before the court a quo and pursued the main claim on the basis that as the sole surviving spouse she was entitled to be awarded the matrimonial home.

PROCEEDINGS BEFORE THE COURT A QUO

The appellant alleged that as she was the sole surviving spouse of the deceased, she was entitled to the matrimonial home, to the exclusion of the second respondent’s claims. She further alleged that the first respondent (the executrix) had not determined the legal status of the property in question and that she had accepted, without any inquiry, a claim for maintenance against the deceased estate lodged by the second respondent on behalf of the minor children of the deceased.

The appellant was of the view that as the surviving spouse she was entitled to the Marlborough house on the basis that, it was their matrimonial home. She was aggrieved that the executrix had accepted the claims by the second respondent which had the effect of dispossessing her of the property. She was also unhappy with the third respondent for lack of a definitive answer on the legal status of the matrimonial home as she considered herself the sole surviving spouse.

On the basis of the above, appellant sought an order declaring the Marlborough house to be matrimonial property and a further order declaring her as the surviving spouse of the deceased, the sole beneficiary of the said property.

The first and second respondents opposed the application. It was denied that the first respondent exhibited any partiality towards the second respondent in any way. The first respondent submitted that she had taken into account all claims made against the deceased’s estate and had drafted a distribution plan which was subject to inspection and challenge in terms of the law. She denied that in any event the appellant was entitled to the immoveable property as she had not resided in the property immediately before the death of the deceased.

The second respondent submitted that she was entitled to lodge claims for maintenance against the estate of the deceased as he was the father of two of her children. She also submitted that at the time that she moved in and cohabited with the deceased he was in financial difficulties and she assisted him by paying off the mortgage on the property. She also effected developments on the property such as building a cottage, garage and wall around the property, as well as tiling the kitchen, carpeting the lounge and renovating the bedroom and bathrooms. It was her submission that upon the death of the deceased she was entitled to claim maintenance for her minor children and the cost of the renovations that she had effected during the time she cohabited with the deceased. She alleged that since the sole asset of the deceased’s estate was the immoveable property it should be sold so as to enable the executor to pay out her claim on the estate.

The court a quo was asked to determine in the main an interpretation of s 3A of the Deceased Estates Succession Act [Chapter 6:02] (hereinafter referred to as the “Deceased Estates Succession Act”. The court a quo in interpreting the provision held that the section had two requirements which had to be satisfied before a person could inherit the matrimonial property as the surviving spouse. Firstly, one had to prove that, legally, he or she was the surviving spouse. Secondly, the surviving spouse must prove that he or she was living at the property in question “immediately before the death of the deceased”.

The court a quo found that the appellant was the surviving spouse but it held that she was not entitled to inherit under s 3A of the Deceased Estates Succession Act because she was not staying at the property immediately before the death of the deceased. The court did not make a determination concerning the removal of the first respondent because counsel for the appellant had not persisted with the matter in a bid to bring finality to the administration of the estate.

The court, however, stated, obiter, that it was improper for the first respondent to have included a claim for maintenance in the distribution account when such a claim had not been adjudicated upon. The court further held that although the alternative claim had been abandoned there were insufficient grounds advanced for the removal of the first respondent as the executrix dative.  As a result, the application for a declaratur was dismissed.

PROCEEDINGS ON APPEAL

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“The court a quo erred and misdirected itself in finding that a spouse who is on separation pending divorce is not entitled to the protection afforded by s 3 and 3A of the Deceased Estate Succession Act [Chapter 6:02].

The court a quo erred and misdirected itself in interpreting the phrase “lived immediately before the person’s death in s 3A of the Deceased Estate Succession Act [Chapter 6:02] to exclude a spouse from inheriting the only matrimonial home of the parties to the marriage.

The court a quo erred further and misdirected itself when it failed to consider and properly take into account that the Marlborough property is the only property where the Appellant and the deceased last lived together as husband and wife.

The court a quo further erred and misdirected itself in its failure to consider and properly take into account that once the second respondent and her relatives occupied the matrimonial home, it became impossible for the appellant to occupy the same home during her visits to Zimbabwe.”

From the four grounds of appeal raised by the appellant it was submitted by both parties that this matter can be disposed of on one issue, which is whether the appellant was entitled to receive from the estate the property in question in terms of s 3A of the Deceased Estates Succession Act [Chapter 6:02] (the Act).

In determining this case it is necessary to interpret s 3A of the Act which deals with the law relating to inheritance under intestate succession where the persons involved were married under the general law. The relevant provision in relation to the distribution of the matrimonial home in an estate reads as follows;

3A. Inheritance of matrimonial home and household effects:

The surviving spouse of every person who, on or after the date of commencement of the Administration of Estates Amendment Act, 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate—

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.

It was common cause that the deceased died intestate. The appellant submitted that the court should adopt a purposive approach in interpreting s 3A of the Act. It was submitted by Mrs Mtetwa, for the appellant, that it could not have been the intention of the legislature that persons who leave Zimbabwe and relocate to the diaspora would lose their property on the basis that they had not lived in it immediately before the death of the deceased. She further submitted that if a literal interpretation is given to the words ‘lived in immediately before’ this would have the effect of disinheriting the surviving spouse thus undermining the whole intention of the Legislature.

The appellant further argued that the legislature’s intention was to protect the matrimonial home for the benefit of a surviving spouse from greedy relatives who were in the habit of grabbing property from a deceased estate.

The appellant argued that the absence of a spouse, immediately before the death of the deceased, from a matrimonial home was not a bar to inherit in terms of s 3A of the Act. The appellant further averred that the institution of divorce proceedings did not terminate her civil marriage to the deceased and, as such, her civil marriage being valid, she was entitled to inherit the matrimonial home. In effect, the appellant’s case was premised on the fact that appellant’s absence from the matrimonial home did not disentitle her to the right to inherit in terms of s 3A of the Act.

Mr Kufaruwenga, for the first respondent, on the other, hand submitted that the interpretation of s 3A of the Act, particularly the phrase ‘lived in immediately before’, did not assume a wider meaning so as to cover a spouse who was not physically residing at the immovable property immediately prior to the death of the deceased. The first respondent submitted that although the appellant’s marriage to the deceased was still in existence, there was no longer any matrimonial link between the parties which entitled the appellant to inherit the matrimonial property in question. The first respondent based her submission on the fact that the appellant had separated from the deceased and therefore no matrimonial link existed between the parties as evidenced by the institution of the divorce proceedings. The first respondent further argued that the appellant’s absence from the matrimonial property was permanent as she had not returned to the matrimonial home for over 20 years. In the result, the first respondent was of the view that the appellant had no claim over the matrimonial property as provided for under s 3A of the Act.

ANALYSIS

The problem raised in this case has presented itself in a number of cases before the High Court. In trying to grapple with the meaning of this section there has been a long line of cases which have interpreted the provision.

In my view, the court correctly found that the appellant was the surviving spouse of the deceased as their divorce had not been finalised before the death of the deceased. The first requirement of the provision was thus satisfied.

On the second requirement of the provision relating to the appellant having lived in the matrimonial home immediately before the death of the deceased, the court a quo found that the appellant had failed to satisfy the provision.

It was accepted by both parties that the appellant had not lived in the matrimonial home for over twenty years when the deceased died. This Court is thus called upon to determine whether the court a quo erred in making this finding.

In the case of Madamombe v Madamombe & Ors HH 455-19 the High Court interpreted the meaning of the phrase as follows:

“The term ‘lived immediately before the person’s death’ has been interpreted to mean that the surviving spouse must have been resident in that property, if not, there must at least be links that the deceased and surviving spouse still regarded that property as their house in which they lived as husband and wife.”

In Ndoro v Ndoro & Anor HH 198-12, the High Court, after considering evidence on the circumstances of the applicant’s absence from what had been her matrimonial home, concluded that:

“In order for a spouse to inherit the house they must show that they lived in that house immediately before the deceased’s death. The applicant in my view has failed to show that she lived at 4 Mimosa road Kadoma immediately before the death of the deceased. The evidence shows that she had left the property. She was not just staying in Norton because of her work commitments but she had separated from the deceased. However, it was clear from the evidence that during the period February 2008 to June 2009 she passed through the property once for a few minutes in order to collect her belongings. This cannot be said to be living at the residence particularly in view of the fact that she had issued summons for divorce in October.”

In Chimhowa & Ors v Chimhowa & Ors HH 183/12, the High Court further held that the term ‘lived in immediately before the deceased’s death’ should be construed only with reference to assets acquired during the course and subsistence of the marriage to the deceased person whose estate is under distribution. The court in Chimhowa (supra) further noted that the legislature, by introducing s3A of the Deceased Estates Succession Act, intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons.

In Chinzou v Masomera & Ors HH 593/15, the High Court had reason to interpret the provision where the surviving spouse had lived apart from the deceased for 37 years. The court stated thus:

“I am of the view that the intention of the legislature was that a surviving spouse in an intestate estate should not be uprooted from the house or domestic premises he/she lived in immediately before the death of the person, provided such property formed part of the deceased persons estate. In casu, the applicant had last lived in the premises 37 years before the death of the deceased. That in my view cannot by any stretch of the imagination be termed immediately before the deceased’s death. The fact that this was the only immoveable property owned by the deceased would still not make it immediately before. I thus conclude that even applying the purposive approach it cannot be said applicant lived in the house immediately before the death of the deceased. She had last been there 37 years ago. Her absence was not because she had gone for employment or such other activities as would entitle her to come back upon completion …  I am of the view that one should have links of living as husband and wife with the deceased prior to the deceased person’s death. In casu, such links were no longer there but for the marriage certificate”.

A close analysis of the above cases shows a distinct pattern in the interpretation of the section in question. Firstly, there must be a matrimonial link between the spouses prior to the death. Secondly, if the parties were separated, what was the reason for such separation? Thirdly, whether the absence from the matrimonial home was temporary or permanent.

It is trite that when interpreting a statute the first port of call is the golden rule. This rule is to the effect that where the language used is plain and unambiguous it should be given its ordinary meaning unless doing so would lead to some absurdity or inconsistency with the intention of the legislature. In Moyo and Ors v Zvoma and Anor SC 28/10, the court stated:

“When interpreting Statutes, courts are guided primarily by the wording and the context of the Statutes.”

In Chegutu Municipality v Manyora 1996 (1) (ZLR) 262 (S), at 264 D-E McNally JA stated:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the word is to be adhered to, as Lord WENSLEDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, ‘unless that would lead to some absurdity, or repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

The same principles were expressed in Innscor Africa Limited & Another v Competition and Tariff Commission SC 52/18, where the court further noted that:

“Interpreting words in their context requires the courts to pay due regard not only to the meaning assigned to the grammatical use of language but also the context, which requires consideration of the rest of the statute as well as its subject matter and its content.”

Thus, the court is called upon to interpret the meaning of the phrase ‘lived in immediately before’ as contained in s 3A of the Act. The Oxford Dictionary of Current English defines the word “immediately” as without pause or delay.

It seems to me that the term “immediately before” is clear and unambiguous. It means exactly what it says and such interpretation does not lead to any absurdity. It was clearly the intention of the legislature to ensure that a surviving spouse should only inherit the house that she lived in immediately before the death of the deceased. In this way, a surviving spouse would not be rendered homeless. It does not require the court to adopt a purposive approach to interpret the provision as suggested by the appellant.

In my view, the dispute arising in this case does not involve purposive interpretation of the provision. The contentious issue relating to whether the appellant lived in the matrimonial house immediately before the deceased’s death is a question of fact that must be determined by the court depending on the circumstances of each case.

The undisputed facts showed that the appellant had not lived in the house in question for a period in excess of 20 years. The appellant argued that her stay in the United Kingdom was temporary and for economic purposes and that her intention was always to return to Zimbabwe.

The question for determination was whether the court a quo was correct in finding that the appellant did not reside in the matrimonial home at the time of the deceased’s death.   In casu, the appellant never stayed at the matrimonial house during the 20 years that she was away. Her two visits to the matrimonial house were for purposes of collecting her belongings. She had instituted divorce proceedings against the deceased. She did not intend to come back and live with him. It is clear that the physical separation of the parties, coupled with the issuance of divorce summons whilst staying away from the house, appears to have led the court to find that appellant was no longer living at the house in question at the time of the deceased’s death. The finding by the court a quo cannot in my view be impugned.

This is because the appellant exhibited no intention to come back to the house, having left for the United Kingdom following the extra-marital relationship between the deceased and the second respondent.

The court a quo clearly made a finding of fact in this respect. It has not been alleged that this finding was so irrational as to warrant interference by this Court. This Court has in various decisions (of this Court) stated that it was not for an appellate court to interfere with a finding of fact by a lower court unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at such a conclusion. (See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 at 670).

It was thus incumbent upon the appellant to show that the finding by the court a quo, that she was not living in the matrimonial home immediately before the death of the deceased, was so irrational that no reasonable court, applying its mind, would have come to this conclusion. It is my view that the appellant failed to do this.

Having failed to satisfy this Court that she was residing at the matrimonial home immediately before the death of the deceased, the appellant could not succeed. I thus find that the appellant was not living at House No. 36 Marlborough Drive, Marlborough, Harare immediately before the deceased’s death. Instead she had settled in the United Kingdom and purchased a property there. In these circumstances, it cannot be said by any stretch of imagination that, by denying her exclusive inheritance to the property, the appellant will be uprooted from the home or domestic premises where she was resident, nor would she be rendered homeless.

It should also be mentioned in passing that the provision entitles a surviving spouse to inherit from the free residue of the estate. (Underlining is my own). It needs to be mentioned that the matrimonial home was the sole property in the deceased’s estate. There were claims against the estate that had to be satisfied. The money could only come from the sale of the matrimonial home as there were no other assets in the estate. In the absence of evidence that the property constituted free residue of the estate the court would also not have been able to issue the declaratory order sought by the appellant.

DISPOSITION

It is this Court’s firm view that the court a quo was correct in dismissing the appellant’s claim. The evidence as a whole leads to one logical conclusion: that the appellant could not exclusively inherit House No. 36 Marlborough Drive, Marlborough, Harare in terms of s 3A of the Act. The appellant was not residing at the matrimonial home immediately before the death of the deceased. There was no evidence that she was temporarily away due to employment, or for educational or other legitimate purposes. She was not uprooted from the house or domestic premises she lived in immediately before the death of the deceased.

Accordingly, I make the following order:

1. 	The appeal be and is hereby dismissed.

2. 	The appellant shall pay the respondents’ costs of suit

on an ordinary scale.

GARWE JA			I agree

PATEL JA			I agree

Mtetwa & Nyambirai, appellant`s legal practitioners

Dzimba, Jaravaza & Associates, 1st respondent’s legal practitioners