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

The late Godfrey Gundani (the deceased) was married to the first appellant customarily in 1993, which marriage was solemnised under the Marriages Act in 2009. During this marriage, they acquired immovable property at No. 7 Llewellyn Road, Lundi Park, Gweru, registered solely in the deceased's name. The first appellant claimed to have contributed to this property and considered it their matrimonial home, though she had relocated to the United Kingdom. In 2012, while still married to the first appellant, the deceased entered into a customary marriage with the second appellant. Together they purchased Stand 201 Tynwald, 17 Danum Road, Ashdown Park, registered in both their names as co-owners. On 30 August 2017, the deceased executed a Will bequeathing the Lundi Park property to his "wife" Lorraine Ncube (expressly excluding the first appellant), and the Ashdown Park property to his son and nephews without recognising the second appellant's half-share. Both appellants challenged the validity of the Will, arguing it contravened the law, infringed their property rights and was contrary to public policy. The High Court dismissed their claims. The appellants appealed to the Supreme Court.

• Whether the testator had the right to bequeath the matrimonial home to a girlfriend whilst legally married under the Marriages Act
• Whether a Will is invalid on grounds of public policy where the testator and beneficiary were in a bigamous and adulterous relationship
• Whether a testator can bequeath property that is jointly owned as if it belonged wholly to him
• Whether the beneficiaries of a Will must be joined as parties in proceedings challenging the validity of that Will
• Whether costs on a legal practitioner-client scale were appropriately awarded

1. The appeal is allowed. 2. The judgment of the court a quo is set aside. 3. The matter is 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. 4. Each party shall bear its own costs.

Beneficiaries of a Will have a real, substantial and direct interest in proceedings challenging the validity of that Will and must be afforded the opportunity to be heard as interested parties. A court hearing such proceedings should order their joinder mero motu in terms of rule 32(12)(b) of the High Court Rules, 2021. Where a trial court has failed to join necessary parties with a substantial interest in the subject matter, the Supreme Court, not being a court of first instance, cannot effect such joinder on appeal but must remit the matter to the trial court for proper joinder and determination in the interests of justice.

The Supreme Court did not make substantive pronouncements on the merits of the appeal, but the judgment records the competing positions of the parties: The appellants contended that the deceased had no right to exclude them from his Will, that bequests to a girlfriend undermined the exclusivity of civil marriage, that the Lundi Park property was acquired during the marriage and was the matrimonial home, and that the Ashdown Park property could not be disposed of in its entirety. The first respondent argued that testamentary freedom is a cardinal principle, that the Lundi Park property was acquired before solemnisation of the civil marriage from the deceased's own resources, that the first appellant had deserted the deceased and instituted (though abandoned) divorce proceedings, that only the deceased's undivided half-share in Ashdown Park was bequeathed, and that public policy does not prohibit bequests to third parties even in extra-marital relationships. The court a quo had held that testamentary freedom entitled the deceased to dispose of his estate as he pleased provided he was not bequeathing property he did not own, and that moral disapproval of adultery does not translate into legal invalidity of testamentary bequests. These issues remain to be determined after proper joinder.

This case affirms the fundamental principle of procedural fairness in Zimbabwean law that parties with a real and substantial interest in the subject matter of litigation must be afforded the opportunity to be heard (audi alteram partem). It establishes that beneficiaries under a Will have such a direct and substantial interest in proceedings challenging the validity of that Will that they must be joined as parties. The case demonstrates the Supreme Court's willingness to identify procedural irregularities mero motu, even after reserving judgment, and to remit matters to ensure justice is done. It also illustrates the court's power under section 22(1)(b)(ix) of the Supreme Court Act to take any course necessary or expedient in the interests of justice, including remitting matters for proper joinder of parties. While the substantive issues regarding testamentary freedom, matrimonial property rights, and public policy implications of bequests to extra-marital partners remain undetermined, the case reinforces that such determinations cannot be made without hearing all affected parties.