Estate Late Collen Moyo (Represented by Mathabisa Nkomo in his Capacity as Executor Testamentary) v Sehluliswe Sibanda and Njabulo Mabuya (NO)

The late Collen Moyo executed a will on 22 March 2006 bequeathing his immovable properties to his three children: Zibusiso Keith Moyo, Khanyile Moyo, and Valentine Musengi. He died in 2009. The first respondent, Sehluliswe Sibanda, claimed to have had an unregistered customary law union with the deceased, for whom lobola was paid in November 2007. She had a son with the deceased, Carlos Mgcini Moyo, born on 7 February 2007 (after the will was executed). She instituted action seeking: (a) a declaration that the will was null and void because it was executed prior to their customary marriage and the birth of Carlos; (b) an order that the estate be wound up under the Deceased Estates Succession Act; or (c) alternatively, that Carlos be entitled to an equal share with his siblings under section 18(1) of the Wills Act. The executors denied that lobola was paid and alleged that the first respondent fraudulently collected over R106,000 from the deceased's South African insurance policy meant for the other children. The applicant then brought an application under Order 11 Rule 75(1) to dismiss the action as frivolous or vexatious.

• Whether an unregistered customary law union constitutes a 'marriage' for purposes of invalidating a will under section 16(1) of the Wills Act
• Whether the subsequent birth of a child renders a will void
• Whether the estate should be wound up under the Deceased Estates Succession Act when a valid will exists
• Whether the action was frivolous or vexatious under Order 11 Rule 75(1)
• Whether Carlos Mgcini Moyo was entitled to an equal share of the estate under section 18 of the Wills Act

(1) The first respondent's claim for a declaration that the will was void by reason of subsequent customary marriage and birth of Carlos was dismissed with absolution from the instance. (2) The first respondent's claim for the estate to be wound up under the Deceased Estates Succession Act was dismissed with absolution from the instance. (3) The first respondent's alternative claim that Carlos Mgcini Moyo is entitled to a share equal to his siblings was referred to trial. (4) Each party to bear its own costs.

An unregistered customary law union does not constitute a 'marriage' for purposes of section 16(1) of the Wills Act [Chapter 6:06] and therefore cannot invalidate a will executed prior to such union. The definition of 'marriage' in section 2 of the Wills Act includes only marriages solemnized under the Customary Marriages Act [Chapter 5:07]. While section 68(3) of the Administration of Estates Act [Chapter 6:01] elevates the status of spouses in unregistered customary unions to equality with registered spouses, this applies only to intestate succession, not to the validity of wills. The subsequent birth of a child does not render a will void; the rights of such child are governed by section 18 of the Wills Act. Where a will is clear, unambiguous, validly executed, and not contrary to law or public policy, courts must give effect to the testator's wishes and cannot remake the will, no matter how unreasonable the provisions may appear.

The court observed that by parity of reasoning with Order 11 Rule 79(4), which allows dismissal of an action against one defendant while allowing it to proceed against another, where a plaintiff's action comprises multiple divisible claims, the court should be at liberty to dismiss those claims that are frivolous or vexatious while allowing other claims that are not frivolous to proceed. The court also noted that the same considerations which apply in determining whether to grant summary judgment should apply in deciding whether to dismiss a plaintiff's action as frivolous or vexatious, citing Wood NO v Edwards: if the court is satisfied that the plaintiff has not an arguable case, the action may be characterized as frivolous and vexatious and an unnecessary waste of costs.

This case clarifies important distinctions in Zimbabwean succession law between registered and unregistered customary marriages for purposes of will validity. It establishes that while section 68(3) of the Administration of Estates Act elevates unregistered customary union spouses to equal status with registered spouses, this equality only applies in intestate succession. For purposes of the Wills Act, only marriages registered under the Customary Marriages Act constitute 'marriages' capable of invalidating prior wills under section 16(1). The case reinforces the principle that courts will not remake or vary valid wills, and that testamentary freedom is paramount where provisions are lawful and not contrary to public policy. It also demonstrates the proper application of Order 11 Rule 75 allowing courts to dismiss portions of claims that are frivolous or vexatious while allowing arguable claims to proceed to trial.