Sheila Gwasira v Lazarus Murendo and Others

Following the death of Shepherd Gwasira, the first respondent (acting as provincial magistrate) confirmed the second respondent, Tokozani Mazvimbakupa, as a co-surviving spouse with the applicant (Sheila Gwasira) in terms of customary law to the estate of the late Shepherd Gwasira. The applicant lodged a review application challenging this confirmation on several grounds including lack of territorial jurisdiction, procedural impropriety (failure to call all interested parties), illegality in confirming the applicant's marriage in her absence, improper dealing with a registered estate, and lack of evidence supporting the second respondent's customary law marriage. The second respondent raised preliminary points challenging the application as fatally defective and premature, arguing that the Master's decision should be challenged rather than the magistrate's confirmation.

• Whether the provincial magistrate had jurisdiction to confirm a customary law marriage in relation to an estate
• Whether the magistrate's court retained power to hold inquiries into customary law marriages following amendments to the Administration of Estates Act
• Whether the review application was premature and should have been directed at the Master's decision rather than the magistrate's confirmation
• Whether the magistrate acted with territorial jurisdiction
• Whether there was procedural impropriety in the confirmation process

1. The application for review was granted. 2. The confirmation of the marriage between Tokozani Mazvimbakupa and the late Shepherd Gwasira issued by Esquire L Murendo on 27 April 2021 was set aside. 3. The second respondent was ordered to pay costs.

Following the amendment of the Administration of Estates Act by Act No. 6 of 1997, magistrates no longer have jurisdiction to hold inquiries or confirm customary law marriages in relation to estates of persons subject to customary law. The previous section 68(2) which conferred such jurisdiction on magistrates was repealed and not re-enacted. The power to determine questions and controversies arising from estates of persons subject to customary law now vests in the Master of the High Court, with aggrieved parties having a right of appeal to the High Court. Any purported confirmation of a customary law marriage by a magistrate in relation to an estate is therefore a nullity for want of jurisdiction and is liable to be set aside on review.

The court noted that the change in the law represented a progressive shift in language from referring to "Africans" to "persons subject to customary law." The court also observed that the repeal of magistrates' powers may have been by design or an oversight by the draftsperson. MUCHAWA J commented that having found lack of jurisdiction, there was nothing to be gained by detaining himself on the other grounds of review raised by the applicant. The court also noted that the second respondent's preliminary objection actually undermined her own case, with the judge commenting that "the second respondent has dug her own grave by raising the preliminary point."

This case reinforces the legal position established in re Estate Chirunda regarding the jurisdiction of magistrates in matters concerning customary law marriages and estates. It confirms that following the 1997 amendments to the Administration of Estates Act, magistrates no longer have jurisdiction to hold inquiries or confirm customary law marriages for estate purposes. Such powers now vest exclusively in the Master of the High Court, with appeals lying to the High Court. The case serves as an important reminder to legal practitioners and executors that disputes regarding customary law marriages in relation to estates must be referred to the Master rather than magistrates, and that purported confirmations by magistrates are invalid and subject to being set aside on review for lack of jurisdiction.