HERBERT CHITEPO LAW SCHOOL

NAME: MARIAN T

SURNAME: NYARUWANGA

REG NUMBER M198055

LECTURER: MRS MOFFAT

COMMENT……………………………………………………………………………………
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INTRODUCTION
The law of succession refers to the area of law which determines the distribution of a person's
assets and liabilities also known as the estate after their death. 1When a loved one dies without
leaving a valid will, the method of distribution of his or her estate is based on customary law
if they lived their lives governed by customary law or governed by general law, that is
legislation or common law, if they did not live according to customary law. 2The Deceased
Estates Succession Act is applicable to those who were governed by general law during their
lifetime, particularly those married under the Marriages Act [Chapter 5:11]. The person who
was governed by customary law during his lifetime, their property is distributed in terms of
the Administration of Estates Act [Chapter 6:01].To determine whether customary law
applies to the Deceased person, regard is made to the nature of the case and the surrounding
circumstances, if it appears just and proper that it should apply. The surrounding
circumstances should include among other things the mode of life of the deceased.

Facts
Joseph was married to Precious and they are both deceased. The couple had five children.
During the subsistence of their marriage, Precious contributed to the construction of an
immovable property which was registered in Joseph's name. She predeceased her husband but
her estate was never registered. Upon Precious's death, Joseph married Pamela and the new
family continued to stay on the property. After Joseph's death, Pamela sought to evict the
children of the first marriage.

Issues

Whether or not Pamela who is the surviving spouse has the right to inherit the estate acquired
outside their own marriage?

Whether or not Pamela has the right to evict children from the house?

Rule of Law

Section 3A Deceased Estates Succession Act

Section 68 F (b) (i) of Administration of Estates Act

1
https://www.mondaq.com/wills-intestacy-estate-planning/989540/intestate-property-succession-in-
zimbabwe

2
https://www.mondaq.com/wills-intestacy-estate-planning/989540/intestate-property-succession-in-
zimbabwe
Section 81 of the Constitution of Zimbabwe
Section 19(1) of the Constitution of Zimbabwe
Section 21 of the Administration Estates Act
Chimhowa v Chimhowa
Application

Whether or not Pamela who is the surviving spouse has the right to inherit the estate
acquired outside their own marriage?

Section 3A of the Deceased Estates Succession Act states that the surviving spouse of every
person who, on or after the date of commencement of the Administration of Estates
Amendment Act, 1997, dies wholly or partly intestate shall be entitled to receive from the
free residue of the estate (a) the house or other domestic premises in which the spouses or the
surviving spouse, as the case may be, lived immediately before the person’s death; and (b)
the household goods and effects which, immediately before the person’s death, were used in
relation to the house or domestic premises referred to in paragraph (a); where such house,
premises, goods and effects form part of the deceased person’s estate. 3Section 68 F (b) (i) of
the Administration of Estates Act [Cap 6:01] on the other hand provides, in relation to the
estates of persons who die intestate, as follows:- where the deceased person is survived by
one spouse and one or more children, the surviving spouse should get  ownership of, or, if
that is impracticable, a usufruct over, the house in which the spouse lived at the time of the
deceased person’s death, together with all the household goods in that house. 4 In interpreting
these provisions in the case of Chimhowa v Chimhowa it was the position of the court that the
protection afforded surviving spouses is, in terms of inheritance, limited to those assets that
were acquired during the course and subsistence of that spouse’s marriage to the deceased
person whose estate is under distribution.5  The effect of the ruling of the court is that
surviving spouses cannot by right claim any matrimonial property acquired outside their own
marriage.6 Essentially this means that a subsequent spouse is not entitled to inherit from the
estate of the predeceased spouse to the impoverishment of the estate of the former spouse nor
to the detriment of the children to the former marriage.  In that case the court granted a life
usufruct of the said property to the respondent who had become married to the descendant
3
Deceased Estates Succession Act Section 3A
4
Administration of Estates Act [Cap 6:01] Section 68 F (b) (i)
5
Chimhowa v Chimhowa HH183/12
6
Chimhowa v Chimhowa HH183/12
spouse, ruling that she was not in a position to deprive the children of their right to inherit
from their parents’ estate. Thus reasoning from the given facts Pamela who is the surviving
spouse to Joseph cannot solely inherit from the estate of Joseph because the children of
Joseph and Precious have a right to inherit from the estate as well. Therefore Pamela is
entitled to the usufruct of the home that was left by Joseph and Precious.

Whether or not Pamela has the right to evict children from the house?

The principle of “best interest of the child” is a key concept in the world’s child rights
protection movement and it mainly applies in the realm of family disputes such as custody,
guardianship, maintenance, adoption of the child1 and inheritance amongst other issues. 7The
overall theme of the principle is that due focus and priority should be given to the political,
economic and social interests of the child whenever policies, laws and decisions are made
which directly or indirectly affect children. 8The principle is incorporated into Article 3 (1) of
the United Conventions on the Rights of Children which states that in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.9Section 81(2) of the Constitution of Zimbabwe provides that a child’s
best interests are paramount in every matter concerning the child. 10The rights of the child to
inherit from their parents’ estate is entrenched in the common law. The law provides that all
children, whether born in or out of wedlock, have a right to inherit from their parents’ estate.
The Constitution in section 26 (d) provides that the State should take appropriate measures to
ensure that, inter alia, where a marriage dissolves by divorce or death, provision is made for
the protection of any children and spouses.11 It follows therefore that no child should be
disinherited merely because the parents are both deceased.

In the case of Chimhowa v Chimhowa (supra) it was stated that it would be against public
policy and conscience to deprive the children of deceased persons the common law right to
inherit from their parents merely because at some stage the surviving parent had remarried.
12
The court went further and pointed out that it was not the legislature’s intention that section
3A of the Deceased Estates Succession Act be interpreted in a way that widows and children
be deprived of their inheritance. On the contrary the intention of the legislature was to protect
7
https://www.ajol.info/index.php/mlr/article/view/145487/135014
8
https://www.ajol.info/index.php/mlr/article/view/145487/135014
9
Article 3 (1) of the United Conventions on the Rights of Children
10
Constitution of Zimbabwe Section 81(2)
11
Constitution of Zimbabwe Section 26(d)
12
Chimhowa v Chimhowa HH183/12
the interests of both the widows and the children as well as keep the property within the
family for the benefit of both. What it means therefore is that a surviving spouse in the case
where the deceased had remarried cannot dispose of or otherwise deal with matrimonial
property in a manner that leaves the children from the previous marriage disinherited. 13 In this
context and by virtue of the Constitution and the common law, Pamela does not have an
exclusive right to deal with the house in a manner that deprives the children of Joseph and
Precious of their rights. As such in the given circumstances, the act of eviction constitutes
disinheritance of the children of Joseph and Precious. Pamela does not have the right to evict
those children from the house because apart from her being the surviving spouse of Joseph
the children also have interests in the house and Pamela merely has usufruct of the same
property.

To conclude, from the facts Pamela who is the surviving spouse to Joseph cannot solely
inherit from the estate of Joseph because the children of Joseph and Precious have a right to
inherit from the estate as well. Pamela is entitled to the usufruct of the home that was left by
Joseph and Precious. Pamela does not have the right to evict the children from the house as
their best interests are protected by the law.

REFERENCES

CASELAW
13
Note above.
Chimhowa v Chimhowa

LEGISLATION

Constitution of Zimbabwe

United Conventions on the Rights of Children

Deceased Estates Succession Act

INTERNET

https://www.mondaq.com/wills-intestacy-estate-planning/989540/intestate-property-
succession-in-zimbabwe

https://www.ajol.info/index.php/mlr/article/view/145487/135014