Mark Taruhla and Others v Fakazi Sonny Taruhla and The Master of the High Court

Sonny Taruhla died on 5 September 1996, survived by thirteen children including the six applicants (from the same mother) and the first respondent (from a different mother), making them half-siblings. The first respondent, as the eldest son, occupied a position of responsibility regarding the deceased's assets. The estate was allegedly registered at Kadoma Community Court under reference WE4/158/96 in December 1996, and a certificate of heir was issued to the first respondent. In October 2018, the family attempted to register the estate afresh at the Master's Office in Harare under DR 2965/18. At the edict meeting, the first respondent's representative produced the 1996 certificate of heir. The Master attempted to locate the original estate file from Kadoma but it could not be found. The applicants challenged the authenticity of the certificate of heir and sought to have the estate administered de novo under DR 2965/18. A previous court order in HC 1270/19 had confirmed the first respondent as sole heir and provided that the estate could only be re-opened by court order.

• Whether the certificate of heirship WE4/158/96 should be declared invalid and set aside
• Whether the estate should be re-opened and administered under DR 2965/18
• What legal entitlements, if any, the applicants have to the deceased estate under the old law of inheritance (male primogeniture rule)
• Whether the matter was res judicata in light of the extant order in HC 1270/19
• Whether the applicants met the requirements for a declaratur under section 14 of the High Court Act

1. The application was dismissed. 2. The applicants were ordered to pay costs of suit jointly and severally, each paying the other to be absolved. 3. The registrar was directed to bring the judgment to the attention of the Master of the High Court.

Under the old law of inheritance applicable to deaths before 1 November 1997, where the male primogeniture rule applied, the eldest son inherited the deceased's estate in his personal capacity. While the heir had duties to support dependants of the deceased, other children had no legal entitlement to share in the estate or to be treated as beneficiaries. An estate can only be registered once under one reference number; it cannot be re-opened or re-registered under a different reference number, even if the original file is lost. For a declaratur to succeed under section 14 of the High Court Act, the applicant must demonstrate an existing, future or contingent right or obligation; mere status as a child of the deceased is insufficient if the applicable law confers no such rights.

The court observed that estates need to be finalized within the stipulated six-month period to avoid erosion in the value of assets, expressing concern that this call seems to fall on deaf ears given the number of succession disputes coming before the courts. The judge noted that while litigants have a constitutional right to approach courts, the fact that this estate remained unfinalized 23 years after death was a cause for concern. The court commented that half-sibling relationships "often spell disaster in inheritance matters." The court also noted that the applicants' position that they could determine when to register an estate was not supported by law, as every estate must be registered. The judge observed that the applicants were "clutching at straws" in attempting to argue a case for maintenance under the Deceased Persons Family Maintenance Act at the hearing stage, and that they "genuinely believe that they are beneficiaries to the deceased estate a position not supported by the law" based on "fallacious position no doubt based on incorrect legal advice."

This case illustrates the application of the old law of inheritance under customary law (male primogeniture rule) to estates of persons who died before 1 November 1997 in Zimbabwe. It confirms that under that system, the heir inherited property in his personal capacity with duties to support dependants, but other children had no automatic entitlement to share in the estate. The case emphasizes the principle that an estate can only be registered once and cannot be re-registered under a different reference number. It also demonstrates the binding nature of court orders and the consequences of failing to oppose confirmation of provisional orders. The judgment highlights the importance of finalizing estates within the stipulated six-month period and the complications that arise from prolonged delays (23 years in this case).