[Man died intestate. Survived by 2 daughters, but no male children. His brother claimed right to the estate under customary law, which sanctions male inheritance. Applying the decision in Katekwe v Muchabaiwa, interpreting the Legal Age of Majority Act, the Supreme Court rules that the daughter, who is a major, can be appointed intestate heiress. Customary law no longer prohibits a woman from inheritance.] 

REPORTABLE (51) Judgement no. S.C. 84/87
Civil Appeal No. 420/85

LEONARD CHIHOWA v. AUXILIA MANGWENDE
SUPREME COURT OF ZIMBABWE,
DUMBUTSHENA, CJ, GUBBAY, JA & MANYARARA, JA,
HARARE, JULY 7 & AUGUST 4, 1987

N.A. Chinogwenya, for the appellant
D.A.B. Robinson for the respondent

DUMBUTSHENA, CJ: Samson Mangoromera Chihowa died intestate on 23 December 1982. He was a businessman. He left both movable and immovable property. The movable property consisted of seven head of cattle, three motor vehicles, one tractor, cash in the sum of $900,00 and money in the bank in excess of $1 000,00. The immovable property was a house at No. 58 Third Avenue, Mbare. 

He was survived by his two daughters Auxilia Mangwende and Agnes Mparadzi. He was also survived by his wife, with whom he had no children, his father and four brothers. His father, Leonard Chihowa, is the appellant in this case. Auxilia Magnwende, the respondent, is a divorcee. After her divorce she went back to live with her father and was helping him in his business. 

From the evidence on the record it is not clear whether there was a final liquidation and distribution account and if there was, when that distribution was made. The respondent said in evidence that she noticed some people wearing her late father's clothes. When she inquired from her uncle Lawrence Chihowa how her late father's estate was distributed, he became hostile. 

The matter did not end there. She brought her claim for succession to her deceased father's estate to the Community Court. The Community Court appointed her the intestate heiress to her father's property. 

The appellant was dissatisfied with the decision of the Community Court. He accordingly, in terms of s 69(2) of the Administration of Estates Act [Cap. 301] as amended, appealed to the court of the Provincial Magistrate of Harare. The learned magistrate after hearing evidence upheld the decision of the Community Court. 

The appellant now appeals against that decision on three grounds. They are: 

1.The learned magistrate erred in finding that in accordance with African law and Customs Auxilia Mangwende was the intestate heiress to the estate of her late father Samson Mangoromera Chihowa. The learned Magistrate accordingly erred in confirming the declaration by the Harare Community Court.  

2. The learned Magistrate erred in finding that the Legal Age of Majority Act 15/82 had repealed the provisions of Shona Custom providing for only male issue to inherit from a male line of succession; 

3. The learned Magistrate erred in his finding that real and substantial justice demanded that Auxilia Mangwende should be the intestate heiress to the estate of her late father." 

There are two issues before this Court: (1) Whether the learned magistrate erred by confirming the decision of the Community Court when she knew that according to African law and custom a daughter cannot succeed to the estate of her deceased father; and (2) Whether subsection (3) of s 3 of the Legal Age of Majority Act, No 15 of 1982 supersedes African law and custom in matters of inheritance and allows a woman to succeed as intestate heiress. 

In her judgment the learned magistrate decided that "when the Legal Age of Majority Act 15/82 came into effect it conveyed majority status on all persons who reach the age of 18 years". She was of the view that where a man used to inherit for the benefit of the dependants of the deceased, now a woman can do the same. 

Mr. Chinogwenya, who appeared for the appellant, submitted that the magistrate's ruling was made "notwithstanding that section 69(1) of the Administration of Estates Act ... which provides that the estate of an African who dies intestate shall be distributed and administered according to the customs and usages of the tribe to which he belonged and further despite that Shona customary law by which the deceased was governed provides that where an African dies intestate, and there is no surviving male issue, the father or brothers are entitled to inherit or to succeed to the deceased estate in a male line of succession. It provides that the nearest male relative should inherit". He relied for the second leg of his submission on what Mr. Harold Child said at 106 in: The History and Extent of Recognition of Tribal Law in Rhodesia, 2nd Ed. The passage reads: 

"In Shona law, on the failure of sons and their male descendants, and of brothers and their male descendants, the estate is taken by the deceased's father, then by his brothers, but in this generation the right to inheritance of widows is not permitted." 

(See Goldin and Gelfand: African Law and Custom in Rhodesia at 297.)

  Mr. Robinson, who appeared for the respondent, contended that subsections (1) and (2) of s 69 of the Administration of Estates Act are not relevant to the point in issue -- the inheritance of the deceased estate by an intestate heiress -- because "subsection (1) simply provides for the system of law which is to apply in the circumstances mention (in the subsection) and subsection (2) simply provides for the way in which any controversies or questions which arise are to be determined ... ". I agree with Mr. Robinson. Subsection (1) tells us what law is to be applied when administering and distributing the estate of an African married according to African law or custom who dies intestate. Subsection (2) directs the manner in which questions or controversies which arise among relatives in connection with the administration and distribution of the estate are to be dealt with. S 69 as amended reads: 

"69 (1) If any African who has contracted a marriage according to African law or custom or who, being unmarried, is the offspring of parents married according to African law or custom, dies intestate his estate shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged. 

(2) If any controversies or questions arise among his relatives or reputed relatives regarding the distribution of the property left by him, such controversies or questions shall be determined in the speediest and least expensive manner consistent with real and substantial justice according to African usages and customs by the provincial magistrate or a senior magistrate of the province in which the deceased ordinarily resided at the time of his death, who shall call and summon the parties concerned before him and take and record evidence of such African usages and customs, which evidence he may supplement from his own knowledge." 

Mr. Chinogwenya's submissions relate to the past. His contentions were valid prior to 10 December 1982 when the Legal Age of Majority Act became law. In saying this I confine my remarks to the question of entitlement to inherit the estate of an African who dies intestate. 

The Legislature by enacting the Legal Age of Majority Act made women whom in African law and custom were perpetual minors majors and therefore equal to men who are majors. By virtue of the provisions of s 3 of the Act women who attain or attained the age of 18 years before the Act came into effect acquired capacity. That capacity entitles them to be appointed intestate heiresses. All that the courts are required to do is to give effect to the intention of the Legislature. Now the eldest daughter of a father who dies intestate can take the lot but not for herself only but for herself and her late father's dependants. 

Mr. Robinson said in his written submission. " ... the respondent acquired full legal capacity when she attained her majority with the result that, under customary law, she was qualified, as the eldest child interested in her deceased father's Estate, to succeed as his heiress, to the exclusion of the appellant as the father of the deceased, with the attendant responsibility to provide for the support of any dependants of the deceased." 

In Masango v. Masango, Supreme Court Judgment No 66/86, this Court considered the responsibility falling on the eldest surviving son of the deceased, the intestate heir of his father's estate, to maintain and support the customary law junior wife of his deceased father and her three children. The heir had refused to support his late father's third wife. BECK, JA, as he then was, said at 3: 

"In the absence of making it possible for the appellant to find such alternative accommodation for herself and the children as would be reasonable in all the circumstances, I do not consider that the respondent is entitled to insist upon their eviction from what is admittedly now his house. To order their eviction without suitable alternative provision having been made for their shelter would be tantamount to sanctioning an avoidance by the respondent of his customary law obligation to care for his father's wife and children." 

(See also Matambo v Matambo 1969 (3) SA 717 (R AD) at 717H.) 

In Masango's case, supra, the eldest was heir to his father's estate and in the instant case it is the eldest daughter who was appointed intestate heiress. What the two share in common is the responsibility to administer their respective estates for the benefit of their father's dependants according to African custom and usage. What has changed is that the respondent in this case has acquired the same capacity to inherit as is possessed by the heir in Masango's case. The other attributes of customary law remain as they were before the Legal Age of Majority Act was promulgated. 

In Katekwe v Muchabaiwa, Supreme Court Judgment No. 87/84 (as yet unreported) this Court considered the effect of the Legal Age of Majority Act No 15 of 1982 on the status of an African woman who had attained the age of 18 years. I had occasion to say in Katekwe v. Muchabaiwa, supra, at 20-21, a case that involved the question of a father suing for damages for the seduction of his adult daughter: 

"The daughter can sue for damages for her seduction and not the father. If the daughter is a minor the right of action remains with the father under the customary law. I believe this was the intention of the Legislature. It accords with both the letter and the spirit of Act 15 of 1982." 

In the different circumstances of this case the above is still applicable. There is nothing in the wording of subsection (3) of s 3 of Act 15 of 1982 which remotely suggests that for purposes of inheritance a woman can still be regarded as a minor. The wording of the subsection is clear and unambiguous and the words used in the subsection bear their ordinary grammatical meaning. Subsection (3) of s reads: 

"(3) The provisions of subsections (1) and (2) shall apply for the purpose of any law including customary law and, in the absence of a definition or any indication of a contrary intention for the construction of 'full age', 'major', 'majority', 'minor', 'minority' and similar expressions in: 

(a) any enactment, whether passed or made before, on or after the fixed date; and 

(b) any deed, will or other instrument of whatever nature made on or after that date." 

In Katekwe v Muchabaiwa, supra, I said at 5: 

" ... the indications are that Parliament's intention was to create equal status between men and women and more importantly to remove the legal disabilities suffered by African women because of the application of customary law. This view is not only common sense, it is supported by the clear and unambiguous language used in ss (3)." 

In my judgment some of the traditional anchors and obligations of African society have broken down and are being intentionally abused by those who want to derive benefit from the old situation. The authors of Women and Law in Southern Africa (edited by Alice Armstrong and Welshman Ncube) have succinctly expressed the abuse to which our customary laws of inheritance are being put. They say at 88:"The classic scenario of such abuse is that of the widow and/or widows of a deceased African male being denied support from the deceased estate by the heir. This may be the deceased's eldest son or where the deceased's children are minors or females, the deceased's elder brother, either in his capacity as heir or as guardian of the heir. It is not infrequent that immediately after the deceased's death the putative heir or heirs descend on the deceased's residence and literally strip it of its contents. They claim that under customary law they are entitled to the deceased's property by right, to do with as they see fit, free of any obligation to the deceased's immediate family. 

Most of these problems are the result of the breakdown of the agrarian traditional family base and with it the structural framework on which customary law depends for its efficacy. Customary succession is primarily based on retaining the family generative property within the extended family, where it is administered by the heir for the benefit of the deceased's dependants at customary law. The heir would normally be the eldest male child of the deceased, or where such person was a minor or there were no male heirs, the eldest brother or male relative of the deceased. 

The very nature of the traditional society probably of itself regulated the conduct of the heir and ensured that the property was administered for the benefit of the descendants of the deceased. One of the consequences of the evolution of Zimbabwean society seems to have been that in many instances traditional obligations have been superseded by purely acquisitive attitudes to deceased estates. Suffice it to say that these new attitudes are devoid of legal sanction, but nevertheless the problems and abuses remain." 

I would like to believe that that is the evil the Legislature wanted to remove when it enacted Act 15 of 1982. There is no indication of a contrary intention other than that enshrined in subsection (3) of s 3 of Act No 15 of 1982. It is my opinion that there is nothing now in any enactment or at customary law which prohibits a woman from being appointed an intestate heiress. Both the Community court and the Court of the Provincial Magistrate were, in my view, correct in the decisions they took. The appeal cannot succeed. 

Both counsels indicated that there should be no order of costs because the appeal is of national importance. There will be no order of costs. 

In the result the appeal is dismissed. 

GUBBAY, JA: I agree. 

MANYARARA, JA: I agree. 

P.A. Chinamasa & Company, appellant's legal representatives

Pro Deo