Wilson Succession 2 - Grade: B+ PDF

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Freedom of testation...

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ZIMBABWE EZEKIEL GUTI UNIVERSITY FACULTY OF LAW BACHELLOR OF LAWS (HONOURS) DEGREE

STUDENT NAME

WILSON DHLAKAMA

REG NUMBER

R180070L

COURSE & CODE

LLB 307 LAW OF SUCCESSION

LECTURER

Mrs. J MACHAKA

DUE DATE

07/03/21

QUESTION: “The Co urts decision in Chiminya v Estate (Late Chiminya) & Ors HH-27215 was based on wro ng principles of law and misinterpretation of Statutes.” Discuss. In yo ur discussion make use reaso ning in Chigwada v Chigwada (SC -188-20) [30]

LECTURER’S COMMENT……………………………………………………………. ………………...………………………………………………………………………………..… ……………………..…….…………………………………………………………………..

LECTURER’S SIGNATURE…………………………. DATE…………………………

Introduction One of the major function s of the judiciary is to interpret and apply laws to specific cases. In the course of decidin g the disputes that come before it, the judges interpret an d apply laws. Every law needs a proper in terpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges in terpret it to mean . However, judges are not God, at times interpretation of some laws and prin ciples may not satisfy the demands of justice and to that effect, appealing or reviewing are centre cores to reckon with. Th ese scenarios where landmarked in the Chiminya v Chiminya (hereinafter to be referred as the Chiminya Case)

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case and later on remedied in the

Chigwada v Chigwada case (To be referred as the Chigwada Case).2 In Chiminya, scholars veh emently noted that prin ciples of law were wrongly interpreted. It is therefore the cou rse approach of this piece, to examin e the decision in Ch imin ya, pointing ou t loopholes an d the relevant application to burning legal issues. The assignment will draw attention from th e findin gs of the Wakapila case (h erein after to be Wakapila case)3 and finally the Chigwada case.4 Scholars and oth er relevan t materials will be acknowledged so as to give effect to the qu estion at hand. Forthcoming are critical definitions; they will be widely spoken across the analysis. Critical Definitions Testate Succession - Testate succession is where a person has laid down in writing how his or h er estate is to be distributed after he/sh e has passed on.5 Intestate Su ccession - In a situation where a person dies withou t havin g made a will or his/her will turns out to be invalid, the law of in testate succession comes into operation when h is/her estate has to be admin istered.6 The law will iden tify the heirs to the deceased estate and distribu te same to the said heirs. It is very important to understand 1

Chiminya v Estate Late Chiminya & ORS 2015(1) ZLR 450 (H) Chigwada v Chigwada & 2 ORS SC 188/20 3 Estate Late Wakapila v Matongo 2008 (2) ZLR 43 (H) 4 Supra note 2 5 See De Waal, MJ & Schoeman-Malan, MC. 2003. Introduction to the Law of Succession, third edition. Cape Town: Juta. 6 Corbett, MM, Hofmeyr, G & Kahn, E. 2001. The Law of Succession in South Africa, second edition. Cape Town: Juta. 2

that ou r law provides a tried and tested formula which applies in the case where a person dies with out a will or in the event his/her will turns out to be the invalid.7 This formula is based on the blood relation ship between the deceased and his/her intestate h eirs. It shou ld also be noted that it is possible for a person to die partly testate and partly intestate. Where a person makes a will, wh ich deals with part of the assets of the estate and fails to indicate what happens to the other assets not included in the will, such assets will devolve in terms of the law of intestate succession.8 Will - Th e document in which the person instructs how h is/her estate is to devolve after his/her death is referred to as a will.9 Testamentary Disposition - Is the disposition or transfer of property that takes effect upon the death of the person making it. The testator retain s almost en tire control of the property until death.10 In short, it is the gift of property which takes effect at the time of th e death of the person makin g the disposition. Right of Inh eritance - The right of inheritan ce is primarily a transfer of th e individual's property, debts, titles, rights, and obligations to another individual upon the death of that person.11 Freedom of Testation - Freedom of testation is one of the founding prin ciples of the law of testate succession as it provides testators with the freedom to direct how th eir estate shou ld be distributed upon death.12 The prin ciple of freedom of testation is a liberal principle which ensures that effect must be given to the expressed wishes of the testator.13 The facts behind Chiminya Case

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Ibid. Harris v Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A) at 571G –J. 9 Kahn 1994 Supplement to the Law of Succession in South Africa 35. 10 Isaacs, I & Horwitz, M. 1979. The South African Law of Testate Succession. Durban: Butterworths. 11 Joubert, WA (ed). 2001. The Law of South Africa. Volume 31, Wills and succession, Administration of deceased estates and trusts. Durban: LexisNexis Butterworths. 12 Joubert, WA (ed). 2004. The Law of South Africa. Volume 32, Indigenous law. Durban: LexisNexis Butterworths. 13 Ibid. 8

The brief backgroun d to the case is that the applican t was customarily married to the late Dennis Mhirimo Chiminya on 24 August 1971 as per the marriage certificate attached as ann exure A on p 5. Before the death of Den nis Mhirimo Chimin ya he execu ted a will on 5 November 2005. Upon Den nis Mhirimo’s death on 11 Jun e 2013 the will was subsequently registered and accepted by Master of the High Court who directed that the estate be woun d up in terms of the accepted will. They will bequeath the matrimonial home house n umber 2421 Egypt line High fi eld to the grandson of th e deceased one Tapiwanashe Den nis. It also bequeaths other property like a shop in Chivhu to th e step son of the applicant that is th e son of th e deceased and furth er bequeath two bicycles to the oth er son. Hupenyu Ch iminya. Fu rther there was distribu tion of cattle. The shop was not an issue for it was disposed of by sale before the death of the testator. The applicant sough t to ch allen ge the validity of the will on the basis th at; (1) Assets acquired in 2006 appeared on the will which was executed in 2005 n amely the bicycles. (2) That the deceased bequeath ed the on ly matrimonial home to her exclu sion. (3) That sh e was the surviving spouse in terms of s 3A of Deceased Estate Succe ssion Act [Chapter 6:02] sh e ough t to be awarded the matrimonial home as the surviving spouse. The first and second respon dents opposed the application on th e basis that there is a valid will whose provisions thereof are capable of being carried out as lo ng as they are not contrary to law and or pu blic policy. The responden ts also sought to rely on an argument that a wife married customarily cannot inherit from the h usband’s estate if the husband dies testate. This argument from th e legal practition er, in my view found no support in law and precedent as will be demonstrated. The Ruling of the Court section 5(3)(a) of the Wills Act prohibits a testator from disinheriting a surviving spouse. The said provision was meant to cure the mischief by testators who wanted to disinherit their survivin g spouses. It was based on the fact th at the surviving spou se h as a righ t of

inheritance protected by section 5(3)(a). Th is con fusion had created uncertain ty in th e minds of the u nsuspecting public as to the correct position of the law. Loopholes in Chiminya Case. a. Interpretation of section 5 (3) (a) of the Wills Act The Chiminya case14 reasoned that the provision was meant to cure the mischief by testators who wan ted to disinherit their surviving spou ses. “Does the law of testamentary disposition of estates, binds a testator to bequ eath his or her right in an estate to the husband or wife in Zimbabwe?”. The law of testamentary disposition is one of the key aspects under inheritance law. The Constitution of the Republic of Zimbabwe, 2013 provides for property rights under section 71 (2), that every person has th e right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypoth ecate, lease or dispose of all forms of property either in dividually or in association with oth ers.15 In Wakapila, Ku dya J erred that it wou ld be absurd to hold that a person who cou ld dispose h is or her property with out the oth er spou se’s con sent wou ld lose the right to dispose of it by will to whomsoever he or she wishes.16 In support to the decision, it is in con jun ction with the reason of Mr Uriri in the Ch igwada case 17, the amicus cu riae opined that s 5(3)(a) of the Wills Act does not create proprietary righ ts. It relates to existing righ ts. Th ese rights must be provided for in terms of a law governing th e property rights of married persons. He submitted th at the law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12], which provides that all marriages in Zimbabwe are out of commun ity of property. The contention was that th e import of the provision of the Married Persons Property Act is that spouses are equal partners, each with the capacity and freedom to hold and dispose of property independent of the other. Thou gh in Chiminya 18, the cou rt underscored that that there is need to protect th e surviving spouses from u ncertain inh eritance practises th at disadvantages any rights thereto, the court boldly wrong interpreted the provision.

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Supra note 1 Constitution of Zimbabwe Amendment No.20 of 2013 16 Supra note 3 17 Supra note 14 18 Supra note 16 15

The right of own ership is someth ing else when it comes to the inviolability of such a right. Thus, Mr Matimba in the Wakapila 19 clarified that th e surviving spouse is vested with rights in a deceased estate, in which a testamentary disposition has been made, at the time of death is fallaciou s for th ree reasons. The first is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator. Th e second being that giving such a meaning to the provision in issue would result in so radical an alteration of the common law power of a spouse to dispose of his or her property to wh omsoever he or she wish es. In Chimin ya, the court expressed a constitutional aspect of section 56 which prohibits all forms of discrimination. The court emphasized gender equity an d put forward to the view that Women regardless of marital status h ave a righ t to equal protection by the law and also have a right to own property. The legislature has made commendable in roads on deceased estates such that one failed to un derstand how the respon dent’s legal practition ers sough t to justify disinh eritance of a survivin g spouses on basis of havin g a registered customary law marriage. Even an unregistered customary law union is recognised for inheritance and proprietary right purposes. However, the reasoning of the court a quo, was n ot accorded to the principles of law. In his discretionary words, Lord Denning vowed that one of the major functions of the judiciary is to in terpret an d apply laws to specific cases. In the cou rse of decidin g the disputes th at come b efore it, the ju dges in terpret and apply laws. Every law n eeds a proper interpretation for gettin g applied to every specific case. This function is performed by th e judges. The law means what the judges interpret it to mean. In casu, the court determination run a foul on actual placing of th e law. Th us, amicu s curiae in Ch igwada case 20 by the name Ms Mahere opined that that a court’s prerogative is n ot to write a will for th e decease d but to give effect to the testator’s intention. She su bmitted that s 5(3)(a) of the Wills Act places a limitation on the exercise of the right of testation. Th e right of equ ality can be a common right and cann ot be qu antified with the right of owning something. In that respect, the court failed to apply correctly principles of the law.

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Supra. Chigwada supra

b. Interpretation of section 3A of the Deceased Estate Su ccession Act Section 3A of the Deceased Estate Succession Act apply to intestate Succession unlike testate succession . Th e question was raised in Wakapila, improvised the cou rt to submit that the deceased did not die eith er wholly or partially in testate, the provisions of s 3A of the Deceased Estates Su ccession Act [Cap 6:02] that were cited by the applicant do not apply in the present case. Chigwada Ruling A five-member Bench of the Supreme Court of Zimbabwe had to set the record straigh t through the case in question, of GERALD CHIGWADA V PENELOPE CHIGWADA & 2 ORS which was han ded down on the 28th of December 2020. The Chief Justice held that, parties to a marriage ou t of community of property are legally entitled to own and dispose of property in their individual capacities. Th e law of testamentary disposition in Zimbabwe recogn izes the doctrine of freedom of testation and does not o blige a testator to bequeath his or h er property to the su rvivin g spouse. Decisions of th e High Court to the effect that a testator is bound to leave his or her property to the surviving spou se are inconsistent with the law and shou ld no longer be followed . The Supreme Court went on to clarify that the provisions of section 3A of the Deceased Estates Succession Act which entitles the surviving spou se to inh erit th e matrimonial home and househ old goods and effects in it did not apply to the 1st Respondent. It is not any spouse who is entitled to inherit in this manner but it is the spou se of a person who died wholly or partly intestate (with out a will). In the present case the 1st Respondent’s husband had died testate. The Critique to the Supreme Court Decision. In the above respect, the Ch igwada case ou tlawed the decision of the Chiminya case and all decisions that correspon ds to the said case. The cou rt justified that the Ch iminya wrongly interpreted the law. However, the circumstances after the Su preme Court brought abou t u ncertainty to th e law and the lan es of justice became questionable. One of the intriguing arguments is that of Dr Mavaza, who questioned the decision in light of more considerate facts of law. Below will be a brief analysis to the question .

The Su preme Cou rt failed to consider some of the moral principles that governs the law of succession . The Cou rt interpreted the statu tory law u sing lateral approach instead of value coherence approach . The court seemed to restore the patriarchal society hen ceforth a democratic society expected to be equ al and open is at compromise . The Court also failed to consider the limitation clause that exist on the freedom of testation by implying that th e freedom of testation is absolute . These are some of the avenues that need to be considered. Th ere is n eed to revisit and amend the law. It is our hope that in future, th e decision of the Supreme Cou rt will be outlawed. The outcome of the Supreme Court, can be criticised for invalidating some provisions that are very in strumental towards protection , promotion an d fulfilment of hu man righ ts for example section 5 (3) (a) of the Wills Act. The purpose of the provision was to protect surviving spouses against un fair discrimination . Th e implication of section 3A of the Deceased Estate Succession Act can be criticised as well on the basis that the court only relied on the on the position where a person died intestate, how abou t those likely to be vulnerable, are their rights going to be realized as well. The New Outlook of Testamentary Disposition. For now, the ruling of the Su preme Cou rt is binding until the time where the judgement will be lawfully ch allenged. Spouses are entitled to disinherit one an oth er. Conclusion The above assessment was a critique of th e decision of the Ch iminya case, th e court a quo ruled that a spouse can not disinherit another spouse. However, the decision was outlawed in the Chigwada case where a Supreme Cou rt ruled that du e to th e principle of freedom of testation, a spou se may disin herit one an other. Th e Su preme Cou rt decision however, can be criticized on the logic that it interpreted th e law withou t considering the other compelling reasons especial invalidating other Acts which seek to protect spouses. Recommendations It is recommended that a thorough relook to the law shou ld be proposed. The decision in the Chigwada case by the Supreme Court shou ld be challenged.

Bibliography Books De Waal, MJ & Schoeman -Malan, MC. 2003. Introduction to the Law of Succession, third edition. Cape Town : Juta. Corbett, MM, Hofmeyr, G & Kahn , E. 2001. The Law of Succession in South Africa, second edition . Cape Town: Juta. Abrie, W, Graham, CR & Van der Linde, A. 2003. Estate and Financial Planning, fifth edition. Pretoria: Pro Plus Publishers. Coertze, RD. 1990. Bafokeng Family Law and Law of Succession, revised edition. Pretoria: Sabra. Kahn, E. 1984. The will that won 't – formalities gone bananas in Van der Westh uizen, J (editorial ch air), Huldigingsbundel Paul Van Warmelo. Pretoria: Un isa. Legislation Constitution of Zimbabwe Amendment No.20 of 2013 Deceased Estates Succession Act [Chapter 6:02] Wills Act [Chapter 6:06] Cases Chigwada v Chigwada & 2 ORS SC 188/20 Chimbari NO v Madzima & ORS HH/325/13 Chiminya v Estate Late Ch imin ya & ORS 2015(1) ZLR 450 (H) Estate Late Wakapila v Matongo 2008 (2) ZLR 43 (H) Majuru v Maju ru HH404/16...