In Re: Estate Late Amos John Chirunda

Amos John Chirunda died in Harare on 8 December 1997. He had been divorced from Margaret Sumbureru on 23 July 1986, with whom he had two children. At the time of his death, he was living with Prisca Chinamora in an unsolemnized customary union. Wilbert Nyamupfukudza was appointed executor dative on 19 April 2005. A dispute arose as to whether Prisca Chinamora qualified as a surviving spouse. By letter dated 1 July 2005, the Acting Deputy Master acknowledged Prisca as the only surviving spouse. The dispute continued, and the executor referred the matter to the Provincial Magistrate at Harare for determination. On 22 June 2006, the Provincial Magistrate ruled that the Master's recognition of Prisca as surviving spouse would be upheld. The deceased's two children from his marriage to Margaret appealed this ruling to the High Court.

• Whether the magistrates' court had jurisdiction to hold an inquiry into controversies arising from the administration of estates of persons subject to customary law following the 1997 amendment to the Administration of Estates Act
• Whether the Provincial Magistrate's ruling was a nullity for want of jurisdiction
• Whether the Master's determination of who qualifies as a surviving spouse is appealable to the High Court
• Whether condonation should be granted for late noting of an appeal against the Master's decision

The appeal was dismissed. Each party was ordered to bear its own costs.

Following the amendment of the Administration of Estates Act by Act No. 6 of 1997, magistrates' courts no longer have jurisdiction to determine controversies or questions arising from the administration of estates of persons subject to customary law. The old section 68(2) which conferred such jurisdiction was repealed and not re-enacted. Where a court acts without jurisdiction, its decision is a nullity from which nothing valid can be derived, and there is consequently nothing to appeal against.

The court observed that whether the Master is empowered by the Act to make a determination of who is a spouse to an estate, and whether such determination is appealable or reviewable by the High Court, are issues that will have to be determined in a future and appropriate case, as the Act appears to have made no specific provisions on these matters. The court also noted that the amendment to use the term 'persons subject to customary law' rather than 'Africans' represents progressive language. The court further indicated that a formal application would be ideal for challenging the Master's decision, particularly to ensure all interested parties (including the Master) are properly before the court.

This case is significant in South African (and Zimbabwean) jurisprudence as it clarifies the jurisdictional changes brought about by the 1997 amendment to the Administration of Estates Act. It confirms that the old practice of referring disputes concerning estates of persons subject to customary law to magistrates' courts was abolished, and that magistrates no longer have jurisdiction to determine such controversies. The case highlights the transition from referring to 'Africans' to the more progressive terminology of 'persons subject to customary law'. It also raises important unresolved questions about the extent of the Master's powers to determine spousal status in customary law estates and the appealability of such decisions, leaving these issues for determination in future appropriate cases. The judgment emphasizes the principle that courts cannot exercise jurisdiction not conferred upon them by law, and that decisions made without jurisdiction are nullities.