Grace Lilian Simbanegavi (2) Anna Muchenje v Michael T. Jumo (In his capacity as the executor of the estate of the late Godfrey Gundani DR MS181/22) (2) Master of the High Court

### Preamble
Judgment No. SC 103/25
Civil Appeal No. SC 301/25
1
REPORTABLE (103)
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REPORTABLE (103)

GRACE     LILIAN     SIMBANEGAVI     (2)     ANNA     MUCHENJE

v

MICHAEL     T.     JUMO    (In his capacity as the executor of the estate of the late Godfrey Gundani DR MS181/22)     (2)     MASTER     OF     THE     HIGH     COURT

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, CHIWESHE JA & MUSAKWA JA

HARARE: 29 SEPTEMBER 2025 & 6 NOVEMBER 2025

M. Mavhiringidze, for the appellants

G. Madzoka, for the first respondent

MAVANGIRA JA:

[1]   This is an appeal against the whole judgment of the High Court (the court a quo) dismissing the appellants’ claim for an order declaring the Will of the late Godfrey Gundani                           (the deceased) null and void on the basis that it contravenes the law, infringes their respective property rights and is contrary to public policy.

[2]   At the centre of the controversy are two women, the two appellants, who both lay claim to recognition and protection under the law as surviving spouses.

[3]  The first appellant was the deceased’s first wife.  They got married customarily in 1993.  In 2009 the union was solemnised under the Marriages Act [Chapter 5:11].  During the course of this marriage, the couple acquired an immovable property at No. 7 Llewellyn Road, Lundi Park, Gweru (the Lundi Park property).  The property was registered solely in the deceased’s name.  The first appellant claimed to have contributed directly and indirectly to the acquisition of the said immovable property.  She considers it as their matrimonial home, although by the time of the deceased’s death, she had relocated to the United Kingdom.

[4]  In 2012, notwithstanding the subsistence of his civil marriage to the first appellant, the deceased entered into a customary marriage with the second appellant.  Together they purchased and registered in both their names the immovable property, Stand 201 Tynwald 15 of Lot 13A Tynwald, Harare, commonly known as 17 Danum Road, Ashdown Park (the Ashdown Park property).  The second appellant is therefore a registered co-owner of an undivided half share in this property.

[5]  On 30 August 2017, the deceased executed his Last Will and Testament.  The contents of this Will became the source of the present litigation.  In it, the deceased bequeathed the Lundi Park property to his “wife”, Lorraine Ncube, expressly excluding Grace.  He also bequeathed the Ashdown Park property to his son and nephews, and purported to pass on the entirety of the property without recognising the second appellant’s half-share in it.

[6]  The Will was lodged with the Master of the High Court (the second respondent), who accepted it for purposes of the administration of the deceased’s estate and issued Letters of Administration to Michael Toindepi Jumo (the first respondent) as the testamentary executor.  Aggrieved by the contents of the Will, the two appellants filed summons in the High Court at Harare under case number HCH 6118/23 on 11 September 2023.  They prayed for: “(a) An order declaring the last Will and Testament of the deceased to be null and void.” They also prayed for: “(b) An order declaring that the estate of the late Godfrey Gundani be disposed intestate in terms of the provisions of the Administration of Estates Act [6:01]” (sic) and: (c) an order of costs on a legal practitioner and client scale.

[7]  The executor opposed the claim.  The matter proceeded to trial, with the appellants insisting that the deceased had no right to exclude them from his Will and to dispose of property in which they held rights.  The executor countered that the deceased acted within the ambit of testamentary freedom, that the Lundi Park property was acquired in his sole name before the solemnisation of the civil marriage, and that the Ashdown Park bequest extended only to his undivided half-share.

[8]  At trial, the appellants led evidence relating to their respective marriages to the deceased, their contributions to the disputed properties, and the legal restrictions they argued applied to the deceased’s testamentary powers.  The appellants’ respective positions were that the bequest to Lorraine Ncube was unlawful as it undermined the exclusivity of a civil marriage, that the Lundi Park property had been acquired during the subsistence of the marriage to the first appellant and was the matrimonial home, and that the Ashdown Park property could not lawfully be disposed of in its entirety.  They further contended that the Will’s express denial of any obligations towards them was both misleading and indicative of an intent to defeat their rights.

[9]  The first respondent, supported by the second respondent, countered that the Will was valid in all respects.  He argued that the deceased had purchased the Lundi Park property in 2008, prior to solemnisation of the civil marriage, and solely from his own resources.  He further maintained that the first appellant had deserted the deceased, and had gone to reside permanently in the United Kingdom.  Furthermore, that she had even instituted divorce proceedings in 2014, thereby forfeiting any claim to matrimonial rights.  Note may be taken at this stage that the divorce proceedings were abandoned and were not pursued to the finality of a decree of divorce being granted by the courts.  On the Ashdown Park property, the first respondent contended that the deceased had only bequeathed his undivided half-share, leaving intact the second appellant’s undivided half share.  He also submitted that public policy does not prohibit bequests to third parties, even where the testator was in an extra-marital relationship.

[10] On 9 April 2025, the court a quo delivered an ex tempore judgment dismissing the appellants’ claims in their entirety.  The court a quo held that testamentary freedom is a cardinal principle of succession law and that the deceased was entitled to dispose of his estate as he pleased, provided that he was not purporting to bequeath property that he did not own.  The court a quo found that the Lundi Park property had been acquired solely by the deceased before the solemnisation of the civil marriage and that there was no credible evidence of contribution by the first appellant.  With respect to the Ashdown Park property, the court a quo accepted the executor’s submission that the deceased only bequeathed his undivided half-share, which he was entitled to do, and thus found no basis to invalidate that provision.

[11]  On the allegation that the bequest to a girlfriend was unlawful and contrary to public policy, the court reasoned that while the relationship may have been extra-marital, the law does not forbid a testator from leaving property to any beneficiary of his choice, including a mistress or partner outside marriage.  It stressed that moral disapproval of adultery does not translate into legal invalidity of a testamentary bequest.  The court                          a quo further held that the statement in the Will denying any obligation to former spouses was legally inconsequential, as rights in property are determined by law, not by the declarations of a testator.

[12]  The court a quo made an award of costs on the legal practitioner and client scale against the appellants, on the basis that their claims lacked merit and that their attempt to impugn a valid Will was an abuse of the court’s time.

[13]   Aggrieved by the decision of the court a quo, the appellants filed this appeal on 16 April 2025 on the following grounds:

“GROUNDS OF APPEAL

The court a quo erred at law in failing to find that the Will was invalid as    bequeathments (sic) of matrimonial house and household goods to a girlfriend whilst the testator was legally married under civil marriage then Marriages Act [Chapter 5:11] was prohibited by law.

The court a quo erred at law by failing to find that the Will was invalid because the testator and the beneficiary of the matrimonial house in the Will were in a bigamous relationship and their adultery was contrary to public policy.

The court a quo erred at law by failing to find that the Will was invalid as the   testator in the Will bequeathed property that was jointly owned in a title deed   as if it belonged wholly to the testator.

The court a quo erred at law in granting costs on a legal practitioner client scale against appellants in circumstances where the testator and the beneficiary of   matrimonial house Lorraine Ncube were acting contra bonos mores.”

[14]   The appellants seek the following relief:

“RELIEF SOUGHT.

WHEREFORE, the appellants pray for the following;

That the appeal be allowed with costs.

That the judgement of the High Court sitting at Harare under HCH 6118/23   dated 9 April 2025 be set aside and in its place the following be substituted.

‘(i). The last Will and Testament of the Late Godfrey Gundani dated                         30 August 2017 be and is hereby declared null and void for being contrary  to law and public policy.

(ii). The Estate of the Late Godfrey Gundani DRMS18/22 shall be disposed in terms of intestate succession.

(iii). Each party to bear its own costs.’”

[15] Counsel for the appellants and for the first respondent addressed the court.  For the purposes of this judgment it will not be necessary to set out or relate to the submissions made.  Suffice to say that after their submissions judgment was reserved.  In further deliberations by the court after reserving its judgment, it occurred to it that the beneficiaries of the deceased’s Will had not been cited, joined or heard in the court a quo as well as before this Court.  The Registrar was immediately directed to invite counsel to make further submissions by way of supplementary heads of argument on this aspect. The Registrar’s communication was couched in the following terms:

“… The court has noted that:-

Lorraine Ncube, Sherman Taonehama Gundani and Panashe Durdley (Junior) Chikumba, all of whom are beneficiaries under the Will of the late Godfrey Gundani, were not cited, joined or heard in the court a quo or on appeal to this Court.  The court invites both counsel to file supplementary heads of argument on the implications or effect, if any, of this, including submissions on the question whether or not the matter might need to be remitted to the court a quo for all the affected/interested parties to be afforded the opportunity of being heard.  May counsel please submit the supplementary heads of argument by close of business on 15 October 2025.”

[16]  On 14 October 2025, supplementary heads of argument were uploaded on the IECMS platform on behalf of the appellants and the first respondent.  Paragraph 20 of the appellants’ supplementary heads of argument reads as follows:

“20. From the foregoing submissions, the appellants humbly submit that Lorraine Ncube, Sherman Taonehama Gundani and Panashe Durdley (Junior) Chikumba who are beneficiaries of the estate of late Godfrey Gundani should have been joined in the proceedings in the court a quo on the basis that they have substantial interest in the proceedings and the implications of non-joinder weighs against the interest of justice especially if the present appeal is upheld. (sic). Therefore, it is in the interest of justice if the matter is remitted to the court a quo for all the relevant parties to be heard.

WHEREFORE, the appellants pray that the matter be remitted to the court                      a quo for all the affected parties to be heard.”

[17]  Under the heading “CONCLUSION” in the first respondent’s supplementary heads of argument, the following submissions are made:

“CONCLUSION.

4 The implications or effect of the failure to cite, join or hear the beneficiaries of the will which was the subject matter of the litigation in the proceedings in the court a quo was to deny them the opportunity to be heard as affected or interested parties. As beneficiaries, they have a personal and substantial interest in the outcome of the litigation. A judgment or order of the court a quo or of the Honourable Court could affect them. Therefore, it was necessary in the interests of justice for them to be cited, joined and heard in the proceedings a quo. The court a quo should therefore (have) mero motu ordered their joinder in terms of r 32 (12) (b) of the High Court Rules, 2021.

4.1. It is necessary in the circumstances for the Honourable Court to remit the matter to the court a quo so that the beneficiaries can be afforded the opportunity to be heard as interested parties with a direct, personal and substantial interest in the deceased’s will and consequently in the outcome of the litigation. The Honourable Court may remit the matter in the exercise of the powers vested upon it by s 22 (1) (b) (ix) of the Supreme Court Act [Chapter 7:13] for the beneficiaries to be specifically joined and heard as regards their interest in the subject matter of the litigation.”

[18]   Section 22 (1) (b) (ix) of the Supreme Court Act [Chapter 7:13] provides as follows:

“22 Powers of Supreme Court in appeals in civil cases.

Subject to any other enactment, on the hearing of a civil appeal the Supreme Court-

…

(b) may, if it thinks it necessary or expedient in the interests of justice-

…

(ix) take any other course which may lead to the just, speedy and inexpensive settlement of the case.”

[19]  The court a quo heard and determined a matter involving a Will without affording the beneficiaries of the said Will the opportunity to be heard.  It is common cause that the said beneficiaries have a real and substantial interest in the matter.  As this Court is not a court of first instance, it cannot, at this appeal stage, join them to the proceedings.  The court a quo must hear them and the matter will thus have to be accordingly remitted to it for that reason and purpose.  The submissions made in supplementary heads of argument by both sides accept and agree to this inevitable reality of the matter having to be remitted to the court a quo as discussed herein.

[20]   It is accordingly ordered as follows:

The appeal be and is hereby allowed.

The judgment of the court a quo be and is hereby set aside.

The matter be and is hereby remitted to the court a quo for the interested parties to be joined to the proceedings and afforded the opportunity to be heard before a determination is made by the said court.

Each party shall bear its own costs.

CHIWESHE JA	:	I agree

MUSAKWA JA 	:	 I agree

Mavhiringidze & Mashanyare, appellants’ legal practitioners.

Jumo, Mashoko & Partners, 1st respondent’s legal practitioners.