Siphathisiwe Muchiyani Mudawini (In her capacity as the Executrix Dative of the estate late Ema Mudawini and also as beneficiary to the estate late Wilson Muchiyani Mudawini) and Henry Muchiyani v Patricia Darangwa N.O (In her capacity as Executrix Dative of the Estate late Wilson Muchiyani Mudawini) and Others

The late Wilson Muchiyani Mudawini died on 7 February 1994, before the Administration of Estates Amendment Act No. 6 of 1997 came into effect on 1 November 1997. He was survived by two wives: Flashia (first wife, 7th defendant) and Ema (second wife), both married under African customary law. Wilson owned an immovable property known as Subdivision H of Lot 11 of Montgomery (Montgomery plot) and two homesteads in Lahleka Village. After Wilson's death, Ema misrepresented to the Master that her son Keith was the eldest son and heir, when in fact Clemence (son of the first wife Flashia) was the eldest. Keith renounced his entitlement in favour of his mother Ema. In HH 492-17, CHITAKUNYE J ordered the re-opening and proper administration of Wilson's estate. The 1st defendant (Patricia Darangwa) was appointed executrix dative. She sold the Montgomery plot to the 5th and 6th defendants for US$60,000 with the Master's consent. Ema died on 3 September 2015. The plaintiffs (children of Ema) challenged the sale, claiming the plot belonged to their mother, that it was sold fraudulently below market value (claiming it was worth US$140,000), and that Ema had effected improvements worth US$28,000-30,500 after Wilson's death.

• Whether HH 492-17 disqualified the late Ema from inheriting the Montgomery plot
• Whether the late Ema could inherit the immovable property under section 68F of the Administration of Estates Act during her lifetime
• Whether the 1st defendant properly administered the estate of the late Wilson in accordance with the law
• Whether the late Ema was entitled to compensation for improvements allegedly effected on the Montgomery plot after Wilson's death
• Whether the sale of the Montgomery plot was fraudulent
• Whether the 5th and 6th defendants were entitled to evict the plaintiffs and claim occupational damages
• Whether the applicable law for intestate succession was the law as at the date of death (pre-1 November 1997) or the amended law

1. The plaintiffs' claim was dismissed. 2. The 5th and 6th defendants' counter-claim succeeded in part - the claim for holding over damages was dismissed. 3. The 2nd and 3rd plaintiffs and all those claiming occupation through them were ordered to vacate the property at 11 Seymour Road, Montgomery, Bulawayo within 7 days, failing which the Sheriff would evict them. 4. The plaintiffs were ordered to pay costs of suit at the ordinary scale, jointly and severally.

The law applicable to the administration and distribution of an intestate estate is the law as it existed at the date of death of the deceased, not the law at the time of administration. For persons who died before 1 November 1997 married under African customary law, the estate must be administered according to customary law whereby the widow cannot inherit immovable property and only the eldest surviving son is the rightful heir. Section 68F(2) of the Administration of Estates Act (as amended in 1997) has no retrospective application to estates of persons who died before 1 November 1997. A party claiming improvements effected on estate property must prove such claim by lodging it during the creditors' call period with supporting documentation. Registered title constitutes a real right enforceable against the world, and the registered owner is entitled to vindicate their right to exclusive possession through a rei vindicatio action.

The court observed that section 116 of the Administration of Estates Act provides a domestic remedy for beneficiaries dissatisfied with an executor's conduct - complaints should first be directed to the Master who has the mandate to investigate and decide whether to apply for removal of the executor. While failure to follow this procedure may not render relief incompetent, it is the appropriate first port of call. The court noted that while the 1st defendant appeared to have conflated the pre- and post-1997 legal positions in the First and Final Distribution Account, this confusion had no force of law and did not change the applicable legal position. The court also observed that Clemence, as rightful heir, could have taken the entire estate but chose to share the proceeds with all of Wilson's children and wives, and this distribution choice did not affect the validity of the estate administration. The court declined to award punitive costs, noting that the plaintiffs were pursuing a matter they genuinely believed they had a right to claim on behalf of their mother.

This case reaffirms the fundamental principle that the law applicable to intestate succession is the law as it existed at the date of death, not the law at the time of administration. It clarifies that the Administration of Estates Amendment Act No. 6 of 1997, which came into effect on 1 November 1997 and introduced spousal inheritance rights under section 68F, does not apply retrospectively to estates of persons who died before that date. The judgment emphasizes that under pre-1997 customary law, widows married under African customary law had no right to inherit immovable property from their husband's estate, and only the eldest surviving son could be appointed heir. The case also illustrates the proper application of rei vindicatio principles and the requirement for claimants against estates to follow statutory procedures (lodging claims during the creditors' call period). It demonstrates judicial reluctance to interfere with properly administered estates where the Master's consent was obtained and no objections were lodged within the statutory period.