Munalo v Vengesai (1974) Z.R.201

Facts

The deceased was resident in the Republic of Zambia for many years.  Both the deceased and his widow were Rhodesian and members of the Shona tribe.  In 1961, the deceased had married his wife in Zambia by Shona law.  The deceased and his wife were living in Zambia as ordinary Africans but among a fairly large Shona community in the Mumbwa District.  Apart from their marriage, their life had not been affected by Shona law.  The deceased was killed in an accident.  The widow of the deceased took out a summons to obtain an order that the deceased’s estate be administered by the High Court under the English Probate law which applied in Zambia and not under the African customary law.  The respondent, a cousin of the deceased, claimed that the estate was governed by Shona customary law.

Issue

Whether the deceased’s estate should be conducted under Shona Law notwithstanding that apart from his marriage, he did not live under Shona Law. Also, should the court administer this case under English Probate law?

Held

The Court took the view that it was clear that the parties were living in a Shona community. When he wished to be married the deceased married by Shona law. If a matter had arisen to which Shona law had applied, it is likely that it would have been followed. Therefore, it was the conclusion of the court that the Deceased carried himself with respect to Shona Law and prima facie his estate was to be administered by Shona Law. Since the Customary Law is in the premise of the Local Court, the Court could not entertain the applicant’s contention to use English Probate Law in the matter. Hence the application was refused.

Commentary

This case is interesting in the sense that the Court had to rely on the Local Court’s Predecessor, the Native Courts Ordinance (1961) which defined the Jurisdiction of that Court to apply to African Customary Law and not only Zambian Customary Law. They had to rely on this ordinance to define the word ‘African’ as ‘any member of the aboriginal tribes or races of Africans or any person having the blood of any such tribe or race and living among and after the manner of such tribe or race and includes anybody or association of persons other than a limited company where membership is composed exclusively of Africans.’ This definition clearly shows that the Jurisdiction of the Local Courts is not only confined to Zambian Customary but also African Customary Law.

Furthermore, on the issue of custody, Doyle CJ said that, “the question of custody cannot, however, be determined by the High Court by the appointment of an administrator of his estate. Whether an administrator were appointed by the High Court or by the local court he would have to distribute the estate in accordance with the Shona law applicable…”

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