Presentación de las sesiones de la propuesta didáctica

This Act applies to estates that are governed by customary law; it applies in cases where a person died intestate. This piece of legislation was introduced by the government of Zimbabwe in 1994

to make inheritance laws more favourable to widows.335 Its aim is to address the problems faced

332

See Article 21(1) African Protocol.

333

Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009) 65.

334

Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009) 66.

335

Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009) 74.

78 in inheriting property under Zimbabwe‘s customary laws and providing a solution particularly

amongst the problem arising from multiple marriages.336

The Act recognises the surviving spouses and children as the major beneficiaries of the deceased;

the Act also recognizes spouses in a polygamous marriage.337 This Act changed the customary

position that allowed a heir to inherit immovable property; the current position is that a heir now

only inherits the deceased‘s name and traditional items such as the walking stick. 338

Prior to the amendment, the customary heir to a man‘s property in most cases was the eldest son as discussed in Chapter three under the principle of male primogeniture. With the amendment, there is no single heir but the property is shared between the widow and the children. Where the immovable property on which the widow lived was owned by the deceased and there is one widow, she is entitled to inherit that property.339 In addition, the Act can be applauded for changing the customary law position by allowing women and girls to inherit from the estates of their deceased husbands and fathers. Where the immovable property on which the widow lived was owned by

the deceased and there is one widow, she is entitled to inherit that property.340 This Act has done

away with the discriminatory customary rule of male primogeniture therefore it conforms to Article 2 of CEDAW and Article 2 of the African Banjul which proscribe discrimination on the

336

Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009) 74.

337

Strategy Conference ‘The Legal Network for Women’s Property and Inheritance Rights’ (2009) 16 Conference Report.

338 _{Strategy Conference ‘The Legal Network for Women’s Property and Inheritance Rights’ (2009) 16 Conference}

Report.

339

Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009)74.

340

Gwarinda Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009)74.

79 grounds of culture and sex. Therefore, this Act is welcome in addressing traditional cultural practices such as male primogeniture which often lead to property grabbing.

Having regard to the two types of registered marriages in Zimbabwe, namely monogamous marriages under the Marriage Act and polygamous marriages under the Customary Marriages Act, marriages solemnized under the Marriage Act result in relations governed by Roman Dutch

Law.341 Marriages solemnized under Customary Marriages Act as well as unregistered

marriages, which are contracted in accordance with custom result in the estates of the spouses being administered in terms of Part IIIA of the Administration of Estates Amendment Act of 1997.342 For widows in polygamous marriages the position is that if a man registered his first marriage in terms of the Marriages Act any subsequent customary union results in the second widow not being recognized as a spouse. In addition to this, if the man‘s first marriage was an unregistered customary union and any subsequent marriage was registered in terms of the Marriage Act, both widows are recognized as surviving spouses. Furthermore, if a man‘s first marriage was solemnized in terms of the Customary Marriages Act and the man subsequently

contracted a ‗monogamous‘ marriage both widows are recognized as surviving spouses. 343 The

Act does not comply with Article 6(c) of the African Protocol which discourages polygamy as a form of marriage but encourages monogamy.

341 _{Gwarinda TA ‘A Critical Analysis of the Impact of the Common Law on African Indigenous Law of}

Inheritance: A case study of post-colonial legislation in Zimbabwe’ (unpublished LLM thesis, University of Fort Hare, 2009)75.

342 _{Part IIIA Administration of EStates Amendment Act.} 343 _{Administration of Estates Amendment Act.}

80 One of the shortcomings of the Act is that it is silent on communal land, although it protects women‘s property rights. Unless a woman is inherited by her late husband‘s brother or uncle she may be evicted from communal land.