Ishmael Madamombe v Winnifildah Madamombe and Others

The plaintiff was married to the late Nyembesi Kapungu under the Marriage Act [Chapter 5:11] on 9 May 1997, after living together in an unregistered customary law marriage from about 1982. They had three children together (the first, second and fourth defendants), and the third defendant was deceased's child from an earlier relationship. During the marriage, an immovable property (Stand 9208 Paradise Highfield, Harare) was acquired through Highfield Co-operative Society (Pvt) Ltd in the deceased's name. The deceased died on 19 August 2007. Plaintiff claimed he joined the co-operative with deceased in 1989 but they registered only deceased's name as he was on military assignments. Defendants contended that deceased joined the co-operative in her own right and that plaintiff deserted the family in 2000, only reappearing at her funeral in 2007. Evidence showed plaintiff had established another home at a plot in Chivhu with another woman (Time Chikosi) and that deceased had filed maintenance applications against him in 2002 and 2005. Documents from the co-operative (the information sheet and lease) showed deceased excluded plaintiff and listed only her children as beneficiaries. The Master of the High Court recommended the property be inherited by plaintiff and the children in equal shares, finding plaintiff was not living at the property immediately before deceased's death. Plaintiff challenged this decision, seeking to be declared sole beneficiary.

• Whether the plaintiff was entitled to inherit the matrimonial property to the exclusion of his major children as a surviving spouse under section 3A of the Deceased Estates Succession Act [Chapter 6:02]
• Whether the plaintiff deserted his matrimonial home or was away on military duty at the time of the deceased's death
• The interpretation of the phrase 'lived immediately before the person's death' in section 3A of the Deceased Estates Succession Act
• Whether a surviving spouse who has established another home elsewhere can exclusively inherit the matrimonial property under section 3A

The plaintiff's claim was dismissed with costs. The property was to be inherited by the plaintiff and the deceased's children in equal shares rather than exclusively by the plaintiff.

To qualify for exclusive inheritance of the matrimonial home under section 3A of the Deceased Estates Succession Act [Chapter 6:02], a surviving spouse must have been 'living immediately before the person's death' at the property in question. This requirement means the spouse must have been resident at the property, or if temporarily absent, must have maintained links indicating they still regarded that property as their matrimonial home where they would return when not away on employment, education or similar lawful reasons. A spouse who has deserted the matrimonial home, established another domestic arrangement elsewhere, and severed ties with the property cannot be said to have been living at the property immediately before the deceased's death, and therefore cannot exclusively inherit under section 3A. Such a spouse may only inherit together with the deceased's children in equal shares as part of the intestate estate.

The court observed that living together does not necessarily require physical presence at all times. A spouse away on employment, education or similar commitments may still be considered as living at the premises if for all intents and purposes the spouse considers the premises as the matrimonial home to which they return. The circumstances of a spouse's absence must be examined to determine whether the spouse was temporarily away or had the intention to permanently be away. The court also noted that the intention of the legislature in enacting section 3A was that a surviving spouse in an intestate estate should not be uprooted from the house or domestic premises they lived in immediately before the death of the deceased, provided such property formed part of the deceased's estate. The court commented that the conduct of the co-operative executive committee members in changing the property records to plaintiff's name after deceased's death without considering the deceased's express wishes in her information sheet and lease documents was an improper attempt to clandestinely assist plaintiff in his dispute with the defendants.

This case provides important guidance on the interpretation of section 3A of the Deceased Estates Succession Act [Chapter 6:02], particularly the requirement that a surviving spouse must have 'lived immediately before the person's death' at the property to exclusively inherit it. The judgment clarifies that physical absence due to work commitments may not disqualify a spouse if they maintained links to the property as their matrimonial home, but a spouse who has established another home elsewhere and severed ties with the matrimonial property cannot invoke section 3A. The case also demonstrates the court's approach to assessing credibility when parties present conflicting versions of events, emphasizing the importance of documentary evidence and the court's willingness to reject witness testimony that contradicts written records. It establishes that desertion and establishment of another domestic arrangement disentitles a surviving spouse from exclusive inheritance of the matrimonial home.