Introduction
The determination of the status of a person as a surviving spouse in an unregistered customary law union in Zimbabwe is a very important decision which operates as a precursor or condition precedent to any legal claim for intestate inheritance from the applicable deceased estate by the concerned person. This issue has always been lying unresolved but it was recently brought to the fore by a related newspaper story that was reported in the Herald edition of 17 April 20172 entitled, “ no lobola, no inheritance…ruling brings closure to surviving spouse debate.” The classification of a person as a surviving spouse of a deceased person is one of the gateway to acquiring inheritance from the deceased person’s estate, especially where the deceased died without leaving behind a valid will (intestate). In some cases, the question of whether or not one is a surviving spouse or even a beneficiary of a given deceased is a highly contested terrain involving complex material disputes of fact which cannot be resolved amicably between the deceased’s family members and other interested parties due to an interplay of a myriad of factors that includes but not limited to greedy, polarisation and settling of personal scores, thereby warranting the intervention a neutral third party to adjudicate . The crux of this paper is to provide an answer to the pricking question of who between the Courts and the Master of the High Court is reposed with the jurisdiction to determine the status of a person as a surviving spouse or otherwise in an unregistered customary law union in Zimbabwe.
Legal Confines Or Boundaries Of The Master’s Jurisdiction In A Customary Law Estate Dispute Among Beneficiaries Regarding Whether Or Not Customary Law Applied To The Deceased Person.
The Master of the High Court’s (hereinafter referred to as ‘’the Master”) jurisdiction in a customary law estate dispute among beneficiaries pursuant to section 68G of the Act is clearly marked and circumscribed within the four corners of the applicable legislation and not open ended. Jurisdiction refers to the legal capacity and power to determine a matter. In terms of the law, the Master’s jurisdiction is only restricted to deciding a dispute among beneficiaries as to whether or not customary law applied to the deceased person , nothing more nothing less. The peremptory provisions of the Administration of Estates Act7(hereinafter referred to as the “Act”) are very
instructive in this regard as follows:
“ Where there is a dispute among the beneficiaries of an estate as to whether or not customary
law applied to the deceased person for purposes of this Part, the question shall be referred to the
Master, who shall determine it in the speediest and least expensive manner consistent with real
and substantial justice.” (emphasis added by underlining).
Thus, the statutory jurisdiction of the Master specifically apply to and is limited to a determination of a dispute among the beneficiaries of an estate as to whether or not customary law applied to the deceased person based on the legal guidelines embedded in the Act as follows:
“ Section 3 of the Customary Law and Local Courts Act ( Chapter 7:05) shall apply in determining
the question whether or not customary law applied to a deceased person for the purpose of this
Part
Provided that it shall be presumed, unless the contrary is shown, that-
(a) customary law applied to a person, who at the time of his death, was married in accordance with customary law; and
(b) the general law of Zimbabwe9 applied to the person who, at the time of his death, was married in accordance with the Marriage Act (Chapter 5:11) or the law of foreign country, even he was also married to the same person under customary law.”