Monica Dhliwayo v Bongani Ndlovu (in his official capacity as the Executor Dative of the estate Late Jubane James Jack) and Others

The plaintiff Monica Dhliwayo claimed ownership of two immovable properties (Lot 1A of Gumtree and Lot 3 of Gumtree) registered in the name of the late Jubane James Jack. She alleged she purchased the properties using her own funds while in a customary marriage with the deceased, though the properties were registered in his name because she lacked a payslip and was pregnant at the time. The deceased was already legally married to the third defendant Clementine Jack under the Marriage Act from 22 September 1972, a monogamous marriage that was never dissolved. The deceased died on 21 February 2006 in the United Kingdom. The plaintiff and deceased lived together from 1980/1981 and had three children together. When the estate was being administered and the properties were to be distributed, the plaintiff sought to interdict the disposal and claimed to be the sole surviving spouse. She later abandoned the claim to be the surviving spouse when it became clear the third defendant remained legally married to the deceased at his death.

• Whether the plaintiff purchased the immovable properties (Lot 1A Gumtree and Lot 3 Gumtree) and was entitled to them despite registration in the deceased's name
• Whether the third defendant was the surviving spouse and lawful heir to the estate of the late Jubane James Jack
• Whether a second marriage entered into while a monogamous marriage subsists is valid
• What rights, if any, a person in a putative or void marriage has to property registered in the name of the deceased

The plaintiff's claim was dismissed with costs.

Where a person enters into a customary marriage with someone who is already party to a subsisting monogamous marriage under the Marriage Act, the second marriage is a nullity. Property registered in the name of the deceased, even if allegedly purchased by funds from a person in a void/putative marriage, forms part of the deceased's estate and is subject to distribution to lawful beneficiaries. The surviving spouse from the valid monogamous marriage is entitled to inherit as a lawful heir. A claimant alleging ownership of property registered in another's name must prove their claim on a balance of probabilities with credible evidence; mere assertion is insufficient. When property is acquired during a valid marriage, it constitutes matrimonial property that falls into the deceased estate upon death, regardless of contributions claimed by persons in subsequent void relationships.

The court observed that where a party cohabits with a married person with full knowledge of the existence of a prior marriage, they take a calculated risk when acquiring property together. The court also noted that the third defendant's distribution account, which included all children of the deceased (including those from the plaintiff), showed she did not seek to exclude lawful beneficiaries, which reflected positively on her approach. The court commented that the plaintiff's initial attempt to claim she was the sole surviving spouse put her in very bad light and led to the conclusion that her intention was to mislead the court. The judge noted that it was inconceivable that the deceased, who was employed by National Railways of Zimbabwe, would have contributed nothing toward the purchase of the property, and that a reasonable person in the plaintiff's position would not have invested all her savings in property registered solely in the name of a man married to another woman.

This case reinforces important principles in Zimbabwean succession and family law: (1) A monogamous marriage under the Marriage Act takes precedence over subsequent customary marriages, which are null and void if entered into while the first marriage subsists; (2) Property registered in the name of a deceased person forms part of their estate for distribution, regardless of alleged oral agreements or arrangements with persons in void marriages; (3) The burden of proof lies on a claimant alleging separate ownership of property registered in another's name, and mere assertion without documentary evidence is insufficient; (4) The surviving spouse in a valid marriage has prima facie claims as a beneficiary in the deceased estate; (5) Persons who cohabit with married individuals knowing of the prior marriage take risks regarding property rights upon death of their partner. The case illustrates the legal consequences of entering relationships with married persons and the importance of documentary evidence in property disputes.