Online Reporter
Fidelis Munyoro
The Supreme Court has partially overturned a judgment that awarded a staggering US$ 345,754.08 in maintenance to the late Kumbirai Manyika Kangai’s first wife, Esther Chitando.
This decision, rooted in disputes over marital status, family dynamics, and estate wealth, has ignited conversations about justice, property rights, and widowhood in Zimbabwean law.
Delivering the ruling, Justice Hlekani Mwayera, presiding alongside Justice Tendai Uchena, with Justice Feliciah Chatukuta (now late) also on the panel, stated:
“This Court cannot lightly interfere with the exercise of judicial discretion. However, when discretion is exercised on mistaken facts or improper principles, it is our duty to set the record straight.”
The case revolved around whether Chitando, married to Kangai under African customary law in 1957 and solemnized in 1963, retained her status as a lawful spouse despite claims of a 1964 divorce.
The appellants, led by Miriam Rehwai Kangai, the deceased’s later wife and civil law spouse, argued that Chitando had been divorced through the customary “gupuro” token decades prior.
However, Chitando maintained that no such divorce occurred, a position bolstered by her daughter and grandson, who testified to a continued relationship between Chitando and the late Kangai.
Justice Mwayera dismissed the appellants’ divorce claims, observing:
“For one to be divorced, they must first have been married. The appellants’ contention that ‘gupuro’ was issued inadvertently confirms the existence of a marriage. Yet, no credible evidence was tendered proving the dissolution of that marriage.”
The appellants’ reliance on an affidavit by the deceased’s elder brother, Thomas Jamiel Kangai, also failed to sway the court. The affidavit, alleging that ‘gupuro’ was issued, was deemed inadmissible due to procedural deficiencies and its inherently hearsay nature.
The court emphasised: “While s27 of the Civil Evidence Act permits the admission of hearsay evidence in limited circumstances, such evidence remains weak and untested. This affidavit could not withstand scrutiny.”
Although the Supreme Court upheld Chitando’s status as a surviving spouse, it found fault with the quantum of maintenance awarded by the High Court.
The court noted errors in the valuation of the estate and the assumption that all beneficiaries were over 40 years old.
Justice Mwayera stressed: “Maintenance must balance the needs of the claimant with the capacity of the estate. The court a quo proceeded on mistaken facts, rendering the award excessive and prejudicial to other beneficiaries.”
The estate, valued at over US$ 7 million, includes two farms and substantial developments under Luna Estates, a private company co-owned by the deceased. The High Court had controversially ordered the transfer of property from Paarl Farm to Chitando as part of her maintenance award.
However, the Supreme Court struck down this directive, citing the principle of corporate separateness.
“It is trite law that a company is a distinct legal entity separate from its shareholders. The first appellant, as a shareholder in Luna Estates, cannot transfer property she does not own,” Justice Mwayera declared.
The case has been remitted to the High Court for the recalibration of Chitando’s maintenance award, with Justice Mwayera calling for a more nuanced evaluation: “The court must consider the estate’s liabilities, beneficiaries’ interests, and the respondent’s genuine needs.”
The ruling has sparked widespread debate. Advocates for widows’ rights argue that the decision affirms the protection of vulnerable women under Zimbabwean law.
Critics, however, decry the prolonged legal battle and its toll on the estate’s heirs, who have seen their inheritance entangled in court proceedings for over a decade.
As the Kangai family estate saga continues, Justice Mwayera’s words resonate: “This Court’s role is not merely to resolve disputes but to ensure fairness, equity, and respect for the law.”
Mathew Masinge