1. Law relating to succession and inheritance in Zimbabwe WLSA- ZIMBABWE DORCAS MAKAZA KANYIMO SENIOR PROGRAMMES OFFICER

2. The old Law on inheritance  Prior to independence – race was the determining factor for inheritance  After independence the concept of male heir continued  The male heir was usually the first son of the deceased.  In the absence of a son any other male relative would inherit  WLSA conducted a research from 1992-1994 and discovered that though women and girls were not legally entitled to inherit, this was a distortion of customary law  Male heirs had immovable property registered in their own names and most would promptly sell house leaving women and children destitute 2 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

3. Continued……………  1982 LAMA seemingly brought relief  In Chihowa vs Mangwende 1987 (1) ZLR 138 LAMA interpreted to mean that women and girls could inherit from their fathers  This was eroded in Vareta vs Vareta SC 126 -90 when a differently constituted Supreme Court held that females could only inherit in the absence of a male heir  In Mwazozo vs Mwazozo SC 121 -94 SC went further and stated that the Shona society was patrilineal in nature and allowing daughter to inherit would do an injustice and would result in enrichment of families where daughters married into 3 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

4. Continued …………  Progressive judgement in Chihowa case was over ruled explicitly in Magaya vs Magaya 1999(1) ZRL 100 and the SC stated that daughters could not inherit from their father’s estate. Even if practice was discriminatory, it did not contravene section 23 of the then Lancaster House Constitution which allowed discrimination in matters of personal law under customary law.  Although the Magaya case was decided in the SC after the 1997 amendment, reason why old law was used is because the new law applies to estates of persons who die on or after the 1 st of November 1997. SO VENIA’S CASE DID NOT LEAD TO THE 1997 AMENDMENT, THE LAW HAD BEEN AMENDED ALREADY. The case rather reflects the reasons why the law had to change.  Although Venia had looked after her parents most of her life, house was awarded to Nakayi a half brother who promptly sold house leaving Venia homeless. She passed on shortly after sale of the house.  WLSA has documented the Venia story – Venial Magaya’s sacrifice – A case of custom gone awry 4 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

5. Amendment no 6 of 1997  The Act drastically changed the face of the Law on inheritance in Zimbabwe.  The intention of the legislature was to protect widows and children from deceased relatives who wanted to snatch away property.  Women and girls were now recognised as equals with males in inheritance matters  Women could inherit directly from the deceased estate as surviving spouses  All children of the deceased under customary law were seen as equals  Customary Law marriages were now recognised for the purposes of inheritance  The male heir is now only entitled to traditional artefacts e.g tsvimbo /intonga  WLSA research of 1992-994 had revealed the need to change the law to reflect the lived realities. 5 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

6. 18years after the amendment of AEA…  The Act works hand in glove with marriage laws in Zimbabwe.  The Act has been problematic in its implementation.  The causes are the decaying social and moral fibre in Zimbabwe  Women and men are engaging in unfaithful relationships known as small houses hence complicating the marriage law system  The HIV and Aids pandemic is fuelling unprecedented deaths  Unstable economic environment  Increase of unemployment and corruption  The poverty datum line is currently at usd505 per person  This has led to a scramble amongst relatives and family of deceased for the deceased property. 6 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

7. Complex situations arising from the AEA..  1. The amendment also added section 3A to the Deceased Estates Succession Act which states that the surviving spouse inherits the house she was living in at the time of death -The courts have interpreted this technically to mean physical presence e.g Ndoro vs Ndoro and Master of the High Court HH-198-12  2.Inheriting property that was inherited before through another marriage-A surviving spouse is entitled to the matrimonial home.This home can be inherited property.This can pit children against the surviving step-parent.Under customary law there is a notion that something cannot be inherited twice. In the Chimhowa case, court attempted to curb this abuse by stating that the new spouse can only inherit provided that the deceased spouse owned the estate he had with his former wife in full. Chimhowa ‘s first wife died and her estate was not registered, He remarried and then died and a clinical approach would mean that the new wife would inherit the house. Am example was given of a maid who if the woman of the house dies, she can get closer to the surviving husband and then marry him. Then he dies and she remains with the house. 7 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

8. Cont….  Surviving spouse can sell the matrimonial home at the expense of the other beneficiaries. Unlike the old customary heir who was under a legal obligation to look after the family of the deceased – duty of care – the surviving spouse does not have such a duty. Children have to resort to applying for maintenance from the estate.  So the customary heir has resurfaced but this time in the form of a surviving spouse  Under customary law wife can only inherit if she was living at the house at the time of death -same problem as under the DESA 8 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

9. Cont  4.Unregistered Customary Law Unions(UCLU):Women in UCLU require confirmation from relatives to be noted by the courts as a wife.Patriachy dictates that lobola is customary and deceased husbands relatives can only provided adequate proof that lobola was paid.  Issue of lobola is contested- when can a woman now say with confidence that she has an UCLU? What is kuroora or kuroorwa under customary law?  In some cases, customary law wives are being called mere girlfriend.  Widows have been disinherited due to greed,poverty,partriachal attitudes of the deceased relatives. 9 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

10. Cont…  5.Bigamy(creating putative marriages):The AEA recognises the existence of a customary law marriages side by side with general law marriages s68(4).  This means if the first wife has a customary law marriage and a second wife has a civil law marriage,for the purposes of inheritance the situation is treated as a polygamous marriage.  If the first wife has a civil marriage and the second wife has a customary marriage,the customary marriage is regarded as invalid.  Supremacy is placed on civil marriages against customary law marriages. 10 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

11. Cont….  Most women in Zimbabwe have customary law marriages.  Another situation is surviving spouses with these civil marriages may have separated for years with the deceased spouse but because the marriage certificate still subsists that spouse is entitled to inherit.  Spouses turn up waving marriage certificates and legally they can inherit because the law does not take into account the issue of seperation 11 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

12. WLSA ACTION POINTS…  WLSA has been working on advocacy to address the grey areas of the law of inheritance.  The new Constitution provides an opportunity to align the enabling Acts and thus address these gaps.  S26(d) of the Constitution states that in the dissolution of a marriage whether at death or divorce, provision should be made for necessary protection of children and spouses.  S56(3) provides for non-discrimination on the grounds of marital status.  S80 specifically states that all laws,customs, traditions and cultural practises that infringe on the rights of women conferred by the Constitution are void to the extent of the infringement. 12 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

13. Cont…  WLSA set up the Property and Inheritance Rights network of Zimbabwe in 2011  WLSA and the property and inheritance rights network of Zimbabwe has produced a position paper on the suggested amendments of inheritance Laws.The paper has been presented to Ministry of Justice in 2012.( It is available on the WLSA website  The alignment process has provided another platform to push for the position paper. The paper has been submitted to MWAGCD and the Master to incorporate in their submissions for the alignment process. 13 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

14. Continued----------  WLSA provides services such as will writing  WLSA has a test case committee and has worked with law firms to file cases on inheritance  Help desks at the courts have been set up  Mobile legal aid 14 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

15. LAST WORD  Matters of inheritance are complex because they involve death and emotions rise  But there is need to reform the laws so that they reflect reality  However it must be a carefully though process 15 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa

16. THANK YOU!!! 16 The law of succession and inheritance in Zimbabwe - Women and Law In Southern Africa