Deborah Ngwenya and Others v Glory Mpofu N.O. and Others

The first applicant Deborah Ngwenya married Ronnie Ngwenya in July 1982 under the African Marriages Act. The marriage produced three children (the second, third and fourth applicants). In 1992, after 10 years of marriage, the first applicant left the matrimonial home and the parties separated, though they were never formally divorced. She instituted divorce proceedings under case number CC 934/92, which dragged on until the deceased's death in April 2008. After the separation, in October 1992, Ronnie Ngwenya entered into a customary marriage with the second respondent Siphathisiwe Ncube, which was not solemnized under the Customary Marriages Act. The second respondent lived with the deceased at house number 6613 Nkulumane, Bulawayo for nearly 16 years until his death. She looked after the deceased during his illness, raised the three children left behind by the first applicant, and contributed to renovations of the matrimonial home. The first applicant only returned from South Africa to attend the deceased's funeral and claimed to have met funeral expenses. The estate was wound up with the second respondent recognized as the surviving spouse and the first applicant sought to nullify the winding up of the estate and distribution account.

• Whether the first applicant qualified as a 'surviving spouse' under section 68F of the Administration of Estates Act despite the legal marriage subsisting but the parties having separated for 16 years
• Whether the second respondent qualified as a 'surviving spouse' under section 68(3) of the Administration of Estates Act having entered into an unregistered customary marriage
• Whether the second respondent was entitled to ownership of the matrimonial home and household goods under section 68F(2)(c)(i) of the Administration of Estates Act
• Whether the applicants properly challenged the distribution of the estate or should have appealed under section 68J of the Administration of Estates Act

The application was dismissed with costs.

A person cannot be regarded as a 'surviving spouse' under the Administration of Estates Act where, despite a legal marriage still subsisting on paper, the parties separated and conducted themselves as if divorced for an extended period (16 years), with one party abandoning the matrimonial home, ceasing to provide conjugal obligations, and instituting divorce proceedings. A person who entered into a customary marriage with the deceased that observed all formalities qualifies as a 'spouse' under section 68(3) of the Administration of Estates Act, even if the marriage was not solemnized under the Customary Marriages Act. Such a surviving customary spouse is entitled to ownership of the matrimonial home and household goods under section 68F(2)(c)(i) where they lived in the home with the deceased until death and contributed to the household. The proper remedy for challenging decisions of the Assistant Master in estate administration is an appeal to the High Court under section 68J of the Administration of Estates Act, not a fresh court application.

The court observed that both the deceased and the first applicant regarded their marriage as having come to an end from the time of separation, as evidenced by the deceased's eagerness to finalize divorce proceedings by January 1993 (as shown in correspondence from his lawyers dated 24 November 1992). The court also noted that the first applicant's claim of having contributed to acquisition of the house was unsupported by proof, and that she was not a joint owner as the house was registered solely in the deceased's name.

This case demonstrates the Zimbabwean courts' approach to determining who qualifies as a 'surviving spouse' under the Administration of Estates Act where there are competing claims between a legal spouse who abandoned the marriage and a customary law spouse. It illustrates that the substance of the marital relationship (cohabitation, consortium, mutual support) is given weight over the mere formal existence of a legal marriage where parties have conducted themselves as divorced. The case also reinforces the entitlement of a surviving customary law spouse to inheritance rights under section 68F of the Administration of Estates Act, even where the customary marriage was not registered under the Customary Marriages Act, provided all formalities were observed. It clarifies the proper remedy for challenging estate distributions is an appeal under section 68J rather than a fresh court application.