Winnie Makwara and Others v Grace Chitura and Others

The late Zebediah Mudimu Makwara passed away on 18 May 2007, survived by 5 wives and 41 children. During his lifetime, he had married 8 wives in total, with two wives having been divorced. The deceased acquired immovable property at 17 Glamis Road, Hatfield, Harare in 1981 while married to his first wife, Faina, who passed away in 1989. The first respondent, Grace Chitura, was the deceased's 8th wife whom he married in 1994, well after the acquisition of the property. The Master of the High Court (third respondent) awarded the immovable property to the first respondent as her sole and exclusive property in the distribution plan. The applicants, who were children of the deceased and his first wife, challenged this decision. After the deceased's death, the first respondent entered into an intimate relationship with Caleb Makwara, a grandson of the deceased and his first wife, which resulted in the birth of a child.

• Whether the applicants adopted the correct procedure in bringing the application for review before the court
• Whether the grounds for review raised (illegality, irrationality, and procedural irregularity) were competent grounds for review
• Whether the Master erred by awarding the immovable property to the first respondent as her sole and exclusive property
• Whether section 68J of the Administration of Estates Act ousts the review jurisdiction of the High Court
• The proper interpretation and application of section 68F(2)(c)(1) of the Administration of Estates Act regarding the award of property to surviving spouses
• Whether property acquired before a marriage can be awarded exclusively to a spouse who married the deceased after such acquisition

The application for review was granted. The court set aside the Master's directive and the executor's distribution plan awarding House No. 17 Glamis Road, Hatfield, Harare to the first respondent as her sole and exclusive property. The executor was directed to compile a fresh distribution plan awarding the house to the deceased's surviving children, with a life usufruct granted to the deceased's surviving spouses. Costs were awarded against the first respondent on an ordinary scale.

The protection afforded to surviving spouses in terms of inheritance under section 68F(2)(c)(1) of the Administration of Estates Act is limited to assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person. A surviving spouse cannot by right claim any right to matrimonial property acquired outside their own marriage, as allowing such would be against public policy and would deprive children of their common law right to inherit from their parents. The Master has a duty to examine the practicability of awarding property to a surviving spouse before making a final decision on distribution. Failure to afford beneficiaries a reasonable opportunity to state their case as required by section 68F(1)(b) constitutes procedural irregularity justifying review. Section 68J of the Administration of Estates Act does not oust the review jurisdiction of the High Court, and parties may seek review under common law principles in addition to the statutory grounds provided in section 27 of the High Court Act.

The court noted that the first respondent had entered into an intimate relationship with Caleb Makwara, a grandson of the deceased and his first wife, which resulted in the birth of a child, though this fact did not form part of the legal reasoning. The court observed that the respondents abandoned their point in limine regarding locus standi as it could not be sustained since the applicants as children and beneficiaries of the deceased had the relevant standing. The court emphasized that there is always a presumption against a statute being construed so as to oust the jurisdiction of the court completely. The court also noted that at the time of death, the first respondent was living with the late husband and other wives in Botswana, and that No. 17 Glamis Road was a home for all the wives as they moved from Zimbabwe to Botswana with the businessman husband.

This case is significant in Zimbabwean inheritance law as it reinforces the principle that a surviving spouse's inheritance rights are limited to property acquired during the subsistence of their marriage to the deceased. It protects the common law inheritance rights of children against claims by surviving spouses to property acquired before their marriage. The case also clarifies that section 68J of the Administration of Estates Act does not oust the High Court's review jurisdiction, and that parties may choose between appeal and review as remedies. It emphasizes the Master's duty to investigate the practicability of property awards and to afford all parties a reasonable opportunity to be heard in accordance with principles of natural justice and procedural fairness.