Tracy Sakutombo v Master of the High Court and Others

Elfigio Zemba died intestate on 8 October 2020. An edict meeting was held on 18 December 2020 where deceased's relatives disputed whether he was married and whether the applicant (Tracy Sakutombo) and third respondent (Yeukai Zhiratsago) were surviving spouses. The Master directed parties to approach the Magistrates Court for determination. On 29 March 2021, a Chinhoyi magistrate confirmed the two women as surviving spouses, with a court order dated 21 May 2021. The fourth respondent (Nomsa Zemba, deceased's child from first marriage) challenged this. The Master held another meeting on 7 May 2021 and issued a determination on 24 May 2021 that the applicant and third respondent were not surviving spouses. The applicant applied for review of the Master's determination, alleging gross irregularity in the hearing process, gross unreasonableness in the decision, and lack of jurisdiction because a magistrate had already determined the matter.

• Whether the Magistrate at Chinhoyi had jurisdiction to determine the marital status in an estate registered with the High Court
• Whether the Master had jurisdiction to conduct a second hearing after the Magistrate's determination
• Whether there were gross procedural irregularities in the manner the Master conducted the hearing on 7 May 2021
• Whether the Master's determination that there were no surviving spouses was grossly unreasonable and irrational
• Whether the applicant and third respondent were surviving spouses of the deceased under customary law

1. The determination of the First Respondent dated 24 May 2021 that Applicant and Third Respondent are not surviving spouses is set aside. 2. Applicant and Third Respondent are declared to be the surviving spouses of the deceased. 3. Each party to bear own costs.

The binding legal principles established are: (1) Following the 1997 amendments to the Administration of Estates Act, magistrates no longer have jurisdiction to determine disputes about marital status in estates registered with the High Court Master; (2) Payment of 'tsvakirai kuno' under customary law is sufficient to establish a customary law marriage, as the payer is considered a customary law husband; (3) A customary law marriage is not dissolved by mere physical separation unless accompanied by proper customary law dissolution procedures such as payment of 'gupuro' or dissolution before a customary law court; (4) Sworn affidavit evidence cannot be overridden by subsequent oral retractions that are not also made in affidavit form; (5) The factum of physical separation does not negate continuance of marriage consortium unless accompanied by the animus of at least one spouse to end the marriage and proper legal steps are taken.

The court noted with suspicion the changed testimony of the deceased's relatives, particularly the two sisters who initially confirmed both women as spouses shortly after the deceased's death but reversed their position about six months later. The court observed that one sister, Gaudencia, clearly did not want any surviving spouse recognized in her late brother's estate, suggesting an ulterior motive behind the retractions. The court also noted that the Master's office itself had filed a report on 4 August 2021 indicating no objection to confirmation of both women as surviving spouses despite the earlier determination of 24 May 2021 finding no surviving spouse, demonstrating internal inconsistency in the Master's position.

This case clarifies important principles regarding: (1) The jurisdictional limits of magistrates acting as Assistant Masters following the 1997 amendments to the Administration of Estates Act; (2) The evidentiary value of customary law marriage payments, particularly 'tsvakirai kuno' and 'mbonano', in establishing marital status; (3) The principle that mere separation does not dissolve a customary law marriage unless proper customary law steps (such as payment of 'gupuro' or dissolution before a customary law court) are taken; (4) The superiority of sworn affidavit evidence over subsequent oral retractions; (5) The Master's jurisdiction and appropriate statutory basis for determining marital status in deceased estates. The case reinforces protection for customary law marriages and widows' rights in estate administration.