HLAHLENI v ESTATE LATE JOHN ZEBURONI HLAHLENI (371 of 2025) [2025] ZWHHC 371 (26 June 2025)

2 HH 371 - 25 HCHF 1305/25 SIFELANI HLAHLENI versus ESTATE LATE JOHN ZEBURONI HLAHLENI (Herein represented by PRISCILLA MAZODZE) WE4/MISC27/87 and DRH 12/90 and ESTATE LATE PRISCILLA MAZODZE Herein represented by the Executrix Rosemary Hlahleni DR461/24 and ROSEMARY HLAHLENI and GETRUDE HLAHLENI and MASTER OF THE HIGH COURT (N.O) and EPWORTH LOCAL BOARD HIGH COURT OF ZIMBABWE **TSANGA J** HARARE; 26 June 2025 _**Unopposed Application**_ _P Mashava,_ for the applicant _ _ Respondents in default TSANGA J: Applicant Sifelani Hlahleni sought a default judgment in motion court on the 15th of May 2025 for a declaratur in terms of s 14 of the High Court Act. I dismissed the application as lacking merit. Her declaratur sought the cession of stand number 633 Makomo, Epworth, measuring 6000 square meters in favour of the late Priscilla Mazodze to be declared null and void. She also wanted the Epworth Local Board as 6th respondent herein to restore the name of her late father Zeburoni Hlahleni in its records as the owner of stand. Further the applicant wanted the Master to reopen the estate so that it can be dealt with in accordance with general law which the applicant believes ought to have been applied instead of customary law against which it was administered. Her description of the factual context against which she was bringing the application was as follows: Applicant is the daughter to the late John Zeburoni Hlahleni, who died intestate on 01 April 1985. At time of his death, he is said to have had an existing civil marriage with the applicant’s mother, Flora Hlahleni, having married her on the 3rd of July 1976. Prior to that, her father had been married customarily to one Lilian Jackson with whom he had four children, namely, Priscilla Mazodze (female), Getrude Hlahleni (female), Rosemary Hlahleni (female) and Bigboy Hlahleni (male). Applicant herself was born in 1975 and was 10 years old at the time of her father’s death. The Priscilla Mazodze and Bigboy have since passed away although applicant does not state when they passed away. Her complaint was that when her father died in 1985, his three daughters, being the second to the fourth respondents in this matter, violently expelled Flora Hlahleni and her from the matrimonial property. They are also said to have fraudulently represented to the Master, that at the time of his death, the late John Zeburoni Hlahleni had separated with the late Flora Hlahleni. As a result thereof, Applicant and her mother were completely excluded as beneficiaries in the Estate Late John Zeburoni Hlahleni, in particular to certain immovable property known as Stand Number 633 Makomo, Epworth, measuring six thousand (6 000) square metres which belonged to him. The property was registered in his name and he lived there with applicant’s mother and the children from his earlier marriage. She also highlighted that the estate was registered and opened twice, first under WE4/MISC27/87 in terms of African customary law where the immovable property was inherited by the late Priscilla Mazodze as the eldest child. The estate was registered for the second time under DRH 90/12 where 3rd Respondent, Rosemary Hlahleni was appointed Executor Dative and awarded the immovable property jointly in equal shares each to herself and the 4th Respondent, Gertrude Hahleni. Since facts do not state when Priscilla Mazodze or Bigboy died it unclear under what circumstances the estate had been re-registered. Her complaint was that in both instances regarding the registration of the estate, the marital status of the late John Zeburoni Hlahleni to the late Flora Hlahleni and her beneficiary interest were not disclosed to 5th Respondent, the Master, hence the alleged prejudice. Applicant’s mother died in 2013. Applicant herself in her adult years had settled in Zambia and married there. It was upon her return to Zimbabwe (she does not state when), that she said she enquired what had happened to her father’s estate and that is when she had discovered that it had been dealt with under customary law through what she termed as misrepresentation on the nature of his marriage. In the heads of argument, the applicant argued that the material non-disclosure of the marital status of the deceased as well as the exclusion of the applicant herself and her mother as beneficiaries was fraudulent. It was said to have resulted in the application of improper legal principles to the estate. In essence, applicant’s argument was that customary law ought not to have been applied. In making this argument reference was made to s 68G of the Administration of Estates Act [_Chapter 6:01_], which is to the effect that general law applies to a person who was married in accordance with the Marriage Act. The second argument was that the estate had been opened without a valid court order. Another argument put forward was that had the Master summoned all relatives, applicant’s mother as the widow would have had priority in appointment as the executrix of the estate. The actions in winding up the estate in 1987 and subsequently in 2012 were argued to be null and void. As for the quest for a declaratur, the applicant argued that the matter was not academic and that she had a real and substantial interest having been deprived of her rightful inheritance as a beneficiary for over forty years. _**The Legal Position**_ The Master deemed himself _functus officio_ and referred applicant to the court. Rosemary and Gertrude Hlahleni did not respond to her application. Having heard the applicant’s arguments, I dismissed the application with costs for the following reasons. Firstly, reference to the provisions of s 68G of the Administration of Estates Act [_Chapter 6:01_] which only came into effect on the 1st of November 1997 was misplaced as that law did not operate retrospectively. The critical question resolutive of the matter was the law applicable to the estate in 1985 when the deceased passed away. Materially, in 1985 how estates of Africans married under the general law were to be dealt with was captured in s 13 of the then African Marriages Act (which much later became the Customary Marriages Act [_Chapter 5:07_] which was couched as follows; **Marriage under the Marriage Act not to affect customary law as to property **“The solemnisation of a marriage between Africans in terms of the Marriage Act shall not affect the property of the spouses, which shall be held, may be disposed of and, unless disposed of by will, shall devolve according to customary law.” Under customary law at the time a widow could not be a beneficiary of her husband’s estate if he died intestate. It was not in dispute that the deceased died intestate or that the property was in his name. It was also not in dispute that the heir who inherited was the oldest child. The heir at customary law inherited the property under general law in his individual capacity on the basis that immovable property could not be disposed of under customary law. The underlying principle under customary law then was that a widow was not a deceased spouse’s heir on intestacy. The interpretation of the implications of the Legal Age of Majority [Act No15 of 1982](/akn/zw/act/1982/15) as it then was in _Chihowa_ v _Mangwende_ SC 84/87 was that a woman who had attained the age of majority could inherit from her intestate father as the eldest child despite preference for inheritance through the male line under customary law. This is what happened here at the time the estate was registered. There was no application of the wrong law at the time even if the marriage that applicant’s mother had was under general law. He had died intestate. The applicant was not the eldest child as she herself rightly points out. Moreover, at the time, an heir inherited immovable property in a personal capacity. There was therefore no illicit exclusion of the applicant or her mother. Moreover, the applicant who was only ten years old at the time purported to speak on behalf of her mother as to what transpired. Her averments were largely hearsay. Applicant’s mother, if aggrieved, could have approached the Master given that an heir at customary law had an obligation then to provide accommodation to the deceased’s wife if needed. See _Masango_ v _Masango SC66/86._ The applicant simply needed to have been appraised of the correct legal position applicable at the time that her father died. It was for these reasons that I dismissed the application with no order as to costs. **Tsanga J** : ……………………………………………………. _MC Mukome Legal Practitioners,_ plaintiff’s legal practitioners