Plaxedes Biri v Joseph Charles Tsuro and Josephine Tsuro and The Master of the High Court and City of Harare

The late Dambi Michael Biri died on 2 July 1985. He had married the second respondent (Josephine Tsuro) by civil rites on 19 December 1953 at St. Paul's Mission, Murewa, and their marriage subsisted until his death, producing six children. The applicant (Plaxedes Biri) met the deceased in 1974 and entered into an unregistered customary law union with him in October 1975, believing he was divorced. She lived with him at Stand 4780 Glen Norah A, Harare from 1975 until his death and bore him three children. The second respondent never resided at the property after 1975. On the deceased's death, the applicant did not register his estate. The second respondent registered the estate on 19 September 2001, and following an edict meeting on 14 November 2001, was issued a certificate of authority on 21 February 2003 to administer the estate and transfer the property into her name. On 4 November 2003, the applicant became aware of the transfer and launched urgent proceedings on 2 December 2003, obtaining a provisional order on 10 December 2003 seeking to set aside the cession and have the property transferred to her. She later withdrew the application against the first respondent (the executor) after failing to serve him.

• Whether an unregistered customary law union constitutes a valid marriage where the deceased had a subsisting civil marriage
• Whether a woman in an unregistered customary law union with a deceased has locus standi to challenge the administration of his estate by his lawfully wedded wife
• Whether a woman living in concubinage with a deceased can be declared a beneficiary in his estate in preference to his lawfully wedded wife
• Whether the appointment of an executor who has completed their mandate and been discharged can be set aside
• Whether principles of justice and equity can override statutory provisions governing inheritance under the Administration of Estates Amendment Act No. 6 of 1997

1. The provisional order granted by the Court on 10 December 2003 was discharged. 2. The applicant was ordered to pay the second respondent's costs of suit.

An unregistered customary law union is not recognized as a marriage under general law where the deceased had a subsisting civil marriage to another person. A woman in such a union is regarded as a concubine and has no locus standi to challenge the administration of the deceased's estate by his lawfully wedded wife or to claim inheritance rights as a surviving spouse. The lawfully wedded spouse married by civil rites has preference rights over a concubine, regardless of the concubine's contributions, length of cohabitation, or children born of the union. Courts cannot disregard statutory provisions governing inheritance (such as the Administration of Estates Amendment Act No. 6 of 1997) in favor of general principles of justice and equity, as to disregard the law would itself constitute inequity. Once an executor has completed their mandate and been discharged, their appointment cannot be retrospectively set aside.

The Court observed that even under customary law, the applicant would not have fared better, as at the time of the deceased's death, customary law did not permit wives to inherit from their husbands, with male issue having preference rights over female issue. The Court noted that the fact that the applicant resided with the deceased on the property since 1975, was regarded by some relatives as his wife, bore him three children, and that the second respondent did not set foot on the property after 1975 or enforce any rights she may have had, would not alter the legal characterization of the relationship as concubinage. The Court distinguished the Pedzisayi case, indicating that the equitable considerations applied in that case involving customary law mistresses and a widow who had acquiesced in the polygamous setup were not applicable to the present circumstances.

This case is significant in Zimbabwean family law and inheritance law as it definitively confirms the subordinate legal status of unregistered customary law unions where a prior civil marriage exists. It demonstrates the strict application of statutory inheritance law and the principle that women in such unions are treated as concubines with no inheritance rights, regardless of the length of cohabitation, contributions to the household, or children born of the union. The judgment reinforces that the lawfully wedded spouse's rights take precedence, and that courts will not apply principles of equity to override clear statutory provisions governing inheritance. It also clarifies that once an executor has been discharged after completing their mandate, their appointment cannot be retrospectively set aside. The case illustrates the harsh consequences for women in unregistered customary unions and highlights the legal vulnerability of their position in inheritance matters.