Judge makes landmark lobola ruling

high-court (1)

Daniel Nemukuyu, Harare Bureau
STAYING together for decades as husband and wife without any payment of lobola, does not upgrade the relationship to a legitimate marriage for purposes of inheritance, the High Court has ruled.

A wrong perception is prevalent in the country that if a woman stays with a man for years, the lengthy period of stay with the man would qualify her as the surviving spouse in the event of the death of the man.

Some lower courts were even swayed into upgrading girlfriends to the status of surviving spouses in estate cases, but High Court judge Justice Happias Zhou, dispelled the claims.

Justice Zhou stripped the surviving spouse’s status off a Harare woman Ms Easter Dzwowa in the estate of the late former Zimbabwe Electoral Commission chief elections officer Lovemore Sekeramayi after evidence of payment of lobola was not produced before the Master of High Court or a magistrate who had dealt with the case.

Ms Dzwowa was staying with the late Sekeramayi at the time of his death at his Chisipite house, but no proof of lobola payment was produced.

However, Sekeramayi’s legitimate wife Faith and her children engaged the services of Harare lawyer Mr Norman Tsarwe of Tadiwa and Associates, to represent them in the legal battle.

The family contested the decision and the matter spilled into the High Court.

Justice Zhou set aside the Master of High Court’s decision recognising Ms Dzwowa as a surviving spouse.

The Court also reversed the decision of allocating Ms Dzwowa the Chisipite house in the distribution of the estate of the late Lovemore Sekeramayi.

“It is ordered that the decision of first respondent (Master) declaring that the third respondent (Ms Dzwowa) was a surviving spouse of the deceased Lovemore Chipunza Sekeramayi be and is hereby set aside.

“The allocation of the immovable property located at Number 31 Hindhead Avenue, Chisipite, Harare to the third respondent be and is hereby set aside…”
Justice Zhou ordered the Master of High Court to reconvene and call evidence from witnesses regarding the status of the relationship between Ms Dzwowa and the late Sekeramayi.

The judge held that the mere fact that lovers are living together was not proof of a legitimate marriage.

“Living together is not the same as being married…The conclusion by the first respondent that the deceased had two wives is therefore not based on any evidence which was placed before him.

“To disinherit a woman who is legally married to the deceased on the basis that she did not live in the house without considering where she would live, is in my view, grossly irregular,” ruled Justice Zhou.

Mr Sekeramayi died of suspected heart failure in his hotel room in Lesotho in 2014.

He was attending a meeting of chief elections officers for electoral management bodies from the SADC region.

 

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  • AbaseLowerGwelo

    thank you,,, these live-ins can even kill a man coz they have all to gain and nothing to lose.

  • Paul Sixpence

    Can a High Court judgment be considered ‘landmark judgement’? Yes, it can set precedence but there are possibilities that a High Court judgement can be challenged at the Supreme Court and the Constitutional Court. In my humble thoughts, i thought landmark judgments are a preserve of the apex courts only. Lower courts cannnot make ‘landmark rulings’!

    • Bob

      well said.

    • libertyatliberty

      l think its because the case has been distiguished and has set precedent.And also for the fact that the decisions of the High Court are binding to all lower or inferior courts ,though not binding to courts higher than the High Court.
      Njabulo

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  • libertyatliberty

    Njabulo ;
    The ruling by the judge who adjudicated on this case
    is partly right. However ,the law of equity allows that if a woman or man has been cohabiting with another ,and during the time while they were staying together, the other contributed towards the development of the property (even if a prenuptial agreement was signed to safe guard the properties of the other),they can claim compensation .That is they can have a claim of the properties as well. The property or properties can be sold and they get their share. “Equity will not suffer a wrong to be without a remedy” .“Equity delights in equality/Equality is Equity” .Unless if she did not
    contribute anything towards the development of the properties, then she cannot
    have any valid claim. Furthermore ,if she has no children with the deceased
    ,she cannot make any valid claim. ln the eyes of the law if she was living with
    the other and were not legally married, then the law regards her that she was
    only cohabiting with the other. But even if it was the case ,but had children, then
    she can claim for her children. The children have birth certificates bearing
    the name and surname of the deceased.

    • Royal Mthwakazi

      This ruling will discourage exactly that. Right from the word go; if you are not married, dont live together under the same roof. Its that simple and not impossible. Both the Bible and African culture have never discourage such liasons. So why talk this equity nonsense when people are doing this on purpose?

      This will prevent either party from cheating their way into either’s homes, with the intention of making these stupid claims in future. People should be made to understand that both men and women should work hard for themselves and for their future and stop trying to benefit from other people’s hard work, through hook and crook via fathom relationships.

      People are today arranging the murder of each other in such relationships all because of inheritance. This must stop!!