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The Herald, August 24, 1990
A FAMILY wrangle over who should inherit property left by their deceased father has ended following a recent Supreme Court decision upholding a magistrate’s ruling that the eldest son was the rightful heir to the estate.
The wrangle started a year after Mbanje Moyo, a small-scale farmer in the Plumtree district of Matabeleland died in 1977.
After the traditional customary “umbuyiso” ceremony had been held, the deceased’s younger son, Cde Nelson Moyo, claimed the inheritance of the estate, alleging that their late father had during his lifetime disinherited his eldest son, Dennis, for being openly disrespectful to him and also for other alleged wrongs.
These alleged wrongs included squandering takings from the farm’s family store and misappropriating funds given to him to repay a loan which their father had raised with the Agricultural Finance Corporation.
The matter went before a provincial magistrate who ruled that according to customary law in Zimbabwe, generally it was the eldest son who inherited a deceased’s estate.
Nelson appealed against this decision, alleging among other things, that his brother had been formally declared or recognised as heir at the deceased’s funeral and that the traditional proceedings to confirm him as heir were omitted at the customary “umbuyiso” ceremony.
The ceremony is held approximately one year after the funeral of the deceased. Judge of Appeal Mr Justice Manyarara, who sat with other judges of appeal, Mr Justice McNally and Mr Justice Korsah, dismissed the appeal with costs.
Evidence led before the magistrate indicated that when the traditional “umbuyiso” ceremony was held at the deceased’s home, Dennis led the gathering to the cattle kraal, where he distributed the beasts among his brothers, his mother and two stepmothers, each receiving two beasts.
He also selected and slaughtered one beast to feed those gathered at the ceremony. Nothing was said about the fate of the farm itself.
Matters came to a head when Dennis decided to dispose of the farm by putting it up for sale. His mother sued him in the community court and obtained an order purported to declare that the farm and the store were the property of the deceased’s family as a whole and that Dennis’ only role was to care for the property and the family, but not to dispose of the property by sale or otherwise.
According to the order, the decision had been taken at the “umbuyiso” ceremony and it was binding on the parties to the dispute.
Mr Justice Manyarara said the evidence given at the trial was that there was no discussion of what would happen to the immovable property at “umbuyiso” ceremony and this evidence is accepted by the provincial magistrate.
“I am inclined to agree with the finding,” he said. Cde Nelson Moyo was represented by Advocate Ishmael Chatikobo and Dennis by Mr S. Ndlovu, of Coghlan, Welsh and Guest. – Ziana.
LESSONS FOR TODAY
An heir is someone who is legally entitled to inherit a deceased person’s assets in the absence of a valid will or trust. An heir can be a person related to the deceased by blood or marriage, like a spouse or children.
In African culture, the eldest son of the deceased is normally the natural choice of an heir.
An heir should ordinarily be someone who is fair, honest and generous because they are normally entrusted with the family fortune and as such, they should ensure that every family member benefits equally from the inheritance.
Online Reporter