Karen Bote v Silas Dune N.O and The Master of the High Court

The late Edward Taashure Mabhiza died testate on 8 October 2009. The applicant, Karen Bote, claimed to have been customarily married to the deceased as his second wife through an unregistered customary union. The deceased's first wife was Ennet Mabhiza. At a meeting before the Master on 1 November 2018, Ennet allegedly conceded that the applicant was customarily married to the deceased, as reflected in the Master's letter dated 15 November 2018. The applicant resided at property No. 103 Svinurai Township, Dema, Seke, which she considered her matrimonial home. The deceased's Will in clause 8 bequeathed this property to the executor and all his children in equal shares, to be retained as family residence. The Will made no provision for the applicant. The applicant sought to strike out clause 8 and have the property awarded to her as a surviving spouse. The applicant failed to disclose the nature of the marriage between Ennet and the deceased, and did not join the children named as beneficiaries in the Will as parties to the application.

• Whether the applicant proved she was a valid surviving spouse entitled to protection under the law
• Whether a customary law union contracted after a monogamous civil marriage is valid for purposes of inheritance
• Whether there was proper joinder of parties, particularly beneficiaries named in the Will
• Whether the relief sought (striking out clause 8 and awarding property to applicant) was appropriate
• Whether there was adequate disclosure of material facts
• Whether personal service was required in an application to strike out a clause in a Will

The matter was struck off the roll with no order as to costs. The court directed that should the applicant decide to proceed: (1) Ennet Mabhiza and all children identified in the Will must be joined as respondents; (2) Personal service by Sheriff must be effected on each respondent unless substituted service is ordered; (3) The applicant must disclose all material facts.

A customary law marriage contracted after a valid monogamous civil marriage under the Marriage Act is null and void by operation of the proviso to section 68(3) of the Administration of Estates Act and cannot confer spousal rights for purposes of inheritance. A person claiming to be a surviving spouse bears the onus of proving the validity of the marriage and cannot discharge this onus merely by producing administrative correspondence without establishing the underlying facts. When seeking to strike out provisions in a Will that affect named beneficiaries, those beneficiaries must be joined as parties to satisfy the requirements of natural justice (audi alteram partem). Courts will not interfere with testamentary freedom except in clear cases justified by law. Applications seeking drastic remedies affecting Wills require full disclosure of all material facts and personal service on affected parties.

The court observed that dishonesty in applications may be by commission or omission, and courts lean in favor of honest parties over dishonest ones. The court noted that if clause 8 of a Will were struck out, the effect would be to release that property from the Will and subject it to administration as intestate property, and the court cannot usurp the Master's functions by directing distribution in such circumstances. The court commented that counsel's deliberate omission of the proviso to section 68(3) and failure to disclose the nature of the first wife's marriage suggested the applicant was "chameleonically careful" about what information to reveal, avoiding anything detrimental to her case. The court remarked that it is not sufficient to describe someone as a "responsible person" for service without describing the relationship between that person and the party being served.

This case is significant in Zimbabwean succession law for affirming several important principles: (1) The proviso to section 68(3) of the Administration of Estates Act which invalidates customary marriages contracted after a monogamous civil marriage under the Marriage Act; (2) The duty of applicants to make full disclosure of material facts, particularly in applications affecting testamentary dispositions; (3) The necessity of joining all affected beneficiaries as parties when seeking to strike out provisions in a Will; (4) The requirement for personal service in applications seeking drastic remedies affecting testamentary freedom; (5) That courts will not readily interfere with freedom of testation and must carefully apply any limitations; (6) That the onus to prove status as a surviving spouse cannot be discharged merely by producing a letter from the Master without independent evidence. The case serves as a warning against deliberate omissions of unfavorable facts and partial citation of statutory provisions.