Tendai Matera and Others v Sikhuluwe Mbambo and Others

The late Fungai Matera died intestate on 5 May 2006. He was married to the first defendant (Sikhuluwe Mbambo) under the Marriages Act since 9 March 2001, having previously lived together in a customary law union since 1999. The plaintiffs are four children from his prior marriage. In 2002, the late Fungai Matera and the first defendant jointly purchased Stand 169 Good Hope Township and began constructing a dwelling house. During the construction period, they lived in rented accommodation at 2105 Westgate. Title to Stand 169 was only obtained on 29 December 2006 (after the deceased's death) in their joint names. The first defendant claimed that she and the deceased had moved to Stand 169 in January 2006 but returned to Westgate in February 2006 due to the deceased's TB diagnosis requiring electricity. On 26 January 2009, the Master issued restricted letters of administration authorizing the executor to transfer the deceased's half share in Stand 169 to the first defendant as the surviving spouse under section 3A of the Deceased Estates Succession Act. Transfer was effected on 29 January 2009. The plaintiffs challenged this transfer, arguing that the first defendant was not living at Stand 169 immediately before the deceased's death and thus not entitled under section 3A.

• Whether Stand 169 Good Hope constituted matrimonial property as contemplated by section 3A of the Deceased Estates Succession Act [Cap 06:02]
• Whether the first defendant was entitled to acquire the deceased's half share in Stand 169 as her property under section 3A
• Whether the first defendant was living at Stand 169 'immediately before' the deceased's death as required by section 3A
• Whether the transfer of the deceased's half share to the first defendant should be set aside
• The proper interpretation of 'lived immediately before the person's death' in section 3A of the Deceased Estates Succession Act

The court ordered: (1) The transfer of the late Fungai Matera's half share in Stand 169 Good Hope be set aside; (2) Deed of Transfer No. 0574/2012 be nullified; (3) The first defendant must take steps to effect a reverse transfer from her name to the estate of late Fungai Matera within seven days of service; (4) Should the first defendant fail to comply, the Sheriff of Harare is directed to take necessary steps to transfer the half share to the third defendant (the estate); (5) The first and third defendants shall bear costs of suit jointly and severally, the one paying the other to be absolved.

To qualify for entitlement under section 3A of the Deceased Estates Succession Act [Cap 06:02], a surviving spouse must have actually been living in the house or domestic premises 'immediately before' the deceased's death. The word 'immediately' means at the time of, or just before, death and requires an actual factual connection between the surviving spouse and the residence at that specific time. The provision does not extend to properties the parties intended to live in, previously lived in, or owned but did not occupy at the time of death. The legislative purpose of section 3A is to prevent surviving spouses from being uprooted from their actual residences, not to grant automatic inheritance of all immovable property owned by the deceased.

The court noted that the first defendant, as a surviving spouse, is entitled to benefit from her late husband's half share in Stand 169 Good Hope, but the nature and extent of such share must be determined taking into account the other beneficiaries (the children from the prior marriage) to the half share. The court also observed that the first defendant had completed construction of the house since the deceased's death, and this must be taken into account in the final distribution. The court commented that if the legislature had intended section 3A to include properties the surviving spouse had lived in previously or any immovable property regardless of occupation, it could easily have stated so explicitly.

This case provides important guidance on the interpretation of section 3A of the Deceased Estates Succession Act [Cap 06:02], specifically the requirement that a surviving spouse must have 'lived immediately before the person's death' in the house to qualify for automatic inheritance. The judgment clarifies that the legislature intended to protect surviving spouses from being uprooted from their actual residences at the time of death, not to grant automatic entitlement to any property owned by the deceased. The case demonstrates that courts will apply a strict, factual interpretation of the temporal requirement ('immediately before death') and will not extend the provision to properties where the parties intended to live but did not actually live at the time of death. It also illustrates the importance of credible evidence and the negative impact of contradictory testimony on a party's case.