Partners should not disinherit each other

SUPREME COURT MISFIRED

BY DR MASIMBA MAVAZA AND DENFORD MADEKUFAMBA in Canada

UNPACKING Chigwada v Chigwada and 2 others SC188/2020

The Supreme Court last week made a decision which suggested that spouses can disinherit each other.

The Decision has generated a lot of debate in the legal circles. This decision is not for lawyers only but it impacts on ever person in a marital partnership. To this end, Denford Madekufamba a celebrated lawyer and Dr Masimba Mavaza unpacks the decision to their understanding.
The Supreme Court usurps the role of Constitutional Court in Chigwada v Chigwada and 2 others SC 188/2020. This means the case was heard in the Supreme court and thus, if left unchallenged, will become law.
The Supreme Court of Zimbabwe (the Court) got it all wrong in its recent judgment in the matter of Gerald Chigwada v Penelope Chigwada and Two Others, SC 188, 2020, when it ruled that spouses can disinherit each other. The Court arrived at a wrong decision because it failed to identify the relevant issue and also failed to interpret the clear and obvious meaning of section 5(3)(a) of the Wills Act.
The relevant facts in the matter are fairly straightforward and undisputed. The late Aaron Chigwada and Penelope Chigwada, the first respondent in the matter, converted their customary marriage to a Christian or Court marriage in 1975, under the Marriage Act, now Chapter 5:11. Gerald Chigwada, the Appellant, is the son of the late Aaron Chigwada by a different wife. The late Aaron Chigwada died in 2011, having made a will in 2007. The will provided that the late Aaron Chigwada’s 50% share in their only house he and Penelope Chigwada had was to be inherited by Gerald Chigwada. Penelope Chigwada resides in this house which she has since effected improvements to.
The issue before the court was not whether it was fair or unfair for the late Aaron Chigwada to leave his 50% share to Penelope Chigwada. This was a non-issue because the law is never always fair. However unfair the law maybe, the courts are obliged to interpret and apply it as is. Unfair laws can only be corrected through legislative changes.
The issue before the court was not whether section 3A of the Deceased Estates Succession Act applied. This was a non-issue because the late Aaron Chigwada left a will that was valid in terms of complying with the formalities of making a will but not in substance or effect.
The issue before the court was not whether there is freedom for people to dispose of their property in Zimbabwe by will. People are free to leave their property to whoever they wish. However, when people choose to marry, they incur certain financial and legal obligations to their spouses by so marrying. For example, where the other spouse demonstrates a need for maintenance and that the other spouse is able to maintain them, maintenance of the other spouse becomes a legal obligation. The property the spouses acquire together become matrimonial property and not individual spouse property, except for certain really personal items, like clothes. The house was not for the late Aaron Chigwada’s. It was jointly owned. It was matrimonial property. Even the Supreme Court confirmed this fact. Further, if their marriage had ended by divorce, the court would have distributed the house, among other considerations, based on the contributions of the spouses to the acquisition and improvement of the house.
The issue before the court was not whether marriages in Zimbabwe are in or out of community of property. This was a non-issue because a marriage being out of community of property has no relevance when courts distribute the spouses’ properties at divorce and for maintenance purposes. Why should it be any different because the distribution happened at death?
The issue before the court was not about gender equality. This was a non-issue because section 56 of the Constitution of Zimbabwe Act guarantees gender equality.
The sole and simple issue for the Court to decide was the meaning and application of section 5(3)(a) of the Wills Act. For ease of reference, it is best to reproduce all of section 5 of the Wills Act. Section 5 of Wills Act reads:
(1) Subject to this Act and any other enactment, any person who has capacity in terms of section four to make a will may in his will— (a) make provision for the transfer, disposal or disposition of the whole or any part of his estate; and (b) make provision for the custody or guardianship after his death of any of his minor children; and (c) make any other lawful provision, disposition or direction, whether in respect of his own or any other property or in respect of any other matter. (the underlining is ours)
(2) Subject to this Act and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such disinheritance or omission.
(3) No provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of— (a) any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or (b) any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or (c) any creditor in respect of any debt or liability payable from or attaching to the testator’s estate; except in so far as such variation or prejudice is brought about with the consent of the person or creditor concerned or through the exercise by him of a right of election. (the underlining is ours)
It is important to note that a testator’s power, set out in section 5(1) of the Wills Act, to dispose of property by will is subject to the provisions of the Wills Act itself and any other enactment. Section 5(3)(a) of the Wills Act is part of the Wills Act. There are no cogent legal reasons why the Court found that the testator’s freedom to will their property to anyone they wish is not constrained by section 5(3)(a) of the Wills Act. How would a spouse disinherit a spouse by disposing of property that that spouse/testator does not own? Accordingly, the freedom to leave property to whomever you please is not absolute. The freedom of testation is not absolute or sacrosanct because even the freedom and right to own property is not absolute, as demonstrated by section 71(3) of the Constitution of Zimbabwe Act which allows the State to compulsorily deprive someone of their property. Further, freedom of testation can be overridden by the Wills Act and other enactment. The other enactment referred to here could be section 12(1) of the Deceased Persons Family Maintenance Act.
Section 5(2) would have permitted the late Aaron Chigwada to disinherit any of his relatives or children, including, but not limited to, Gerald Chigwada. However, section 5(3)(a) of the Wills Act makes it abundantly clear that the late Aaron could not have legally disinherited his surviving spouse, Penelope Chigwada. The late Aaron Chigwada prejudiced Penelope Chigwada by leaving his 50% share of the jointly owned house to Gerald Chigwada. This prejudice or effect of the late Aaron Chigwada leaving a share to a matrimonial house to Gerald Chigwada and not his surviving spouse is precisely the mischief or outcome that Parliament of Zimbabwe sought to outlaw or prohibit by enacting section 5(3)(a) of the Wills Act. Section 5(3)(a) of the Wills Act use the word shall. In law this means that its provisions are mandatory.
Section 5(3)(a) cannot possibly be read to refer to a spouse’s act of disposing of the other spouse’s share of the property because one cannot legally dispose, by will or otherwise, something they do not own. For that reason, it is common cause that the late Aaron Chigwada could not have legally disposed of Penelope Chigwada’s 50% share in the house. It is Aaron Chigwada’s 50% share in the house that section 5(3)(a) of the Wills Act prohibited him from leaving to anyone else, other than his surviving spouse, Penelope Chigwada. By failing to interpret and apply this section properly, the Court prejudiced Penelope’s legal entitlement to Aaron Chigwada’s 50% share in the house. This is most unfortunate and unfair because the existing law is clearly in favour of Penelope Chigwada.
The ordinary grammatical meaning of disinheriting someone is preventing them from inheriting your property. This is exactly what the will of the late Aaron Chigwada did. It disinherited Penelope Chigwada. It is precisely this disinheriting that section 5(3)(a) of the Wills Act was meant to remedy or avoid. The Court circumvented the legislature’s intent in section 5(3)(a) of the Wills Act to address the mischief of testators disinheriting their spouses. To conclude otherwise amounts to saying that section 5(3)(a) of the Wills Act is redundant. In the absence of clear language to the contrary, the common law presumes non-redundancy or superfluity in legislation. In other words, section 5(3)(a) of the Wills Act is there for a purpose. As such, what then is its purpose, if it is not to prevent testators from disinheriting their spouses?  
The Supreme Court effectively nullified a statutory provision for no apparent good legal reasons. Section 5(3)(a) of the Wills Act is actually supported or complimented by section 26(d) of the Constitution of Zimbabwe Act. If the reason is because section 5(3)(a) of the Wills Act is unconstitutional, which is denied, that reason would be inconsistent with the provisions of section 26(d) of the Constitution of Zimbabwe Act. Section 26(d) of the Constitution of Zimbabwe Act which provides that:
The State must take appropriate measures to ensure that-
In the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.
The only logical conclusion one gets from the Court’s judgment is that the Court, without exactly using those words, found section 5(3)(a) of the Wills Act to be unconstitutional for interfering with the freedom of testation. If this inference from the Court’s ruling is correct, the Court exceeded its powers because constitutional matters should be dealt with by the Constitutional Court. Further, the Supreme Court effectively found the provision unconstitutional without giving the parties before it and the Government an opportunity to make full submissions on the constitutionality or otherwise of the relevant section. As provided for in section 167(3) of the Constitution of Zimbabwe Act: 
The Constitutional Court makes the final decision whether an Act of Parliament …. is constitutional.
The matter should have been referred to the Constitutional Court because section 169(3) of the Constitution of Zimbabwe Act stipulates that:
The Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction.
Section 114 of the Constitution of Zimbabwe Act provides that, among other things, the role of the Attorney General of Zimbabwe is to “represent the Government in civil and Constitutional proceedings.” The Supreme Court of Zimbabwe effectively nullified a law without following the requisite process for nullifying laws, thereby usurping the role of the legislature to make laws. The Supreme Court’s job in the case was to interpret and apply the law, section 5(3)(a) of the Wills Act.
The Court’s judgment raises the legal question of what will happen to section 12(1) of the Deceased Persons Family Maintenance Act. The section also, potentially, impinges on the freedom of testation. It reads:
12 Disposition with intent to deprive dependents of maintenance (1) Subject to this section, every disposition of property by a deceased which was made—(a) within the period of two years immediately preceding his death; and(b) with the intention of depriving any dependent of maintenance from his estate; may be wholly or partially set aside by a court of competent jurisdiction if it considers it fair and reasonable to do so
The Attorney General of Zimbabwe should intervene in this matter and have it referred to the constitutional court for a full hearing on the constitutionality or otherwise of section 5(3)(a) of the Wills Act. Left on its own the decision will cause irreparable harm to many people in future.

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