The applicants sought to challenge the estate of the late Godfrey Zakeo Mahenga, approximately 8-9 years after its winding up. The first applicant, Christine Goremusandu, claimed she was customarily married to the deceased and sought to have the deceased's civil marriage to the first respondent (Eunice Agnes Chitambara) declared null and void. She also sought redistribution of matrimonial assets including Stand 525 Mabelreign Township Harare and Subdivision 4 of Hippo Valley Estate, Chiredzi. Evidence showed that the first applicant was separated from the deceased and had married Dzikamai Katsidzira, with whom she bore a child. The estate had been duly registered, advertised, and distributed without objection. The second applicant had previously approached the court on the same matter in HC4755/12. The Hippo Valley property was allocated to the deceased under the government land resettlement programme.
The application was dismissed with costs ordered against the applicants jointly and severally, the one paying the other being absolved.
1. Where applicants seek relief under general law statutes (Administration of Estates Act and Deceased Estates Succession Act), the Prescription Act applies and claims prescribe after 3 years, notwithstanding claims of customary marriage. 2. A delay of 8-9 years in challenging estate distribution is unreasonable in the absence of an application for condonation of delay. 3. The doctrine of res judicata applies where the same matter based on the same facts between the same parties has been previously decided by a court of competent jurisdiction. 4. An unregistered customary law union cannot nullify or annul a civil marriage; such marriages can co-exist. 5. Rights acquired under government land resettlement programmes are personal rights (in personam) and not transmissible to heirs, and therefore cannot accrue to a deceased estate. 6. A party with a direct and substantial interest in the subject matter (such as the Ministry of Lands regarding land allocation) must be joined to proceedings, and failure to do so renders the application incompetent.
The court made observations about the broader social phenomenon of disputes over deceased estates, noting with concern how "the intended comfort brought about by acquisition of material things invariable turns into volatile squabbles with the living claiming they have more rights than all the other people and claiming they were the closet to the deceased or departed." The court also observed that the first applicant "cannot surely have her cake and eat it the same time" in claiming to be married to the deceased while having married another man and borne a child with him, noting that her marriage to Katsidzira marked her divorce from the deceased. The court further observed that there was a lack of genuineness in the first applicant's marriage claim given her failure to dispute being married to another man while claiming she was not given a "gupuro" (divorce token) from the deceased.
This case reinforces several important principles in Zimbabwean law: (1) the application of prescription to estate matters under general law; (2) the doctrine of res judicata preventing re-litigation of decided matters; (3) the requirement for joinder of parties with direct and substantial interest; (4) that unregistered customary law unions cannot nullify civil marriages; (5) the personal and non-transmissible nature of rights acquired under land resettlement programmes; and (6) the importance of timeous challenges to estate distribution, particularly the requirement to object during the estate administration process. The case serves as a warning against attempting to reopen properly administered estates years after finalization without reasonable explanation or proper legal basis.