Court name
Supreme Court of Zimbabwe
Case number
SC 39 of 2005
Civil Appeal 293 of 2003

Gunda and Another v Gunda and Another (93/03) (SC 39 of 2005, Civil Appeal 293 of 2003) [2005] ZWSC 39 (14 September 2005);

Law report citations
Media neutral citation
[2005] ZWSC 39
















DISTRIBUTABLE
(34)


Judgment
No. SC 39/05


Civil
Appeal No. 293/03








(1)
ANDERSON GUNDA (2) DAISON GUNDA v





(1)
CECILIA GUNDA (2) THE MASTER OF THE HIGH COURT








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
OCTOBER 12, 2004 & SEPTEMBER 15, 2005








L
Mazonde
, for the
appellants





O
Mushuma
, for the first
respondent





No
appearance for the second respondent











GWAUNZA
JA: This is an appeal against the judgment of the High Court, which
declared invalid the purported will of the late Aaron
Mukoki Gunda
(“the deceased”). The deceased was married to the first
respondent according to civil rites, on 28 December 1990.






The first respondent in the
court
a quo
challenged the validity of the purported will - in terms of which the
deceased made various bequests to his children and brothers
- on two
main grounds. Firstly she alleged that the will did not comply with
the requirements of the Wills Act [
Chapter
6:06]. Secondly, she charged that the signature purported to be
that of the testator (i.e. her husband), was a forgery.






The learned judge in the court
a quo
noted correctly, in his judgment, that sufficient evidence had been
placed before the court to prove that the signature purported
to be
that of the deceased, was indeed not his at all.





The
learned trial judge’s reasons for declaring the will invalid are
contained in the following passage from his judgment at pp
5-6:





“The
issue for decision in this Case is whether the will is a genuine
testimental document by the deceased or not. Several factors
point
against the genuineness and hence the validity of the will. The
signature of the testator is not genuine. This is the conclusion
reached by the hand-writing expert.







The Master was of the same view
in his first report. I am of the same view after comparing the
signatures in the late Gunda’s
daughter’s home work books and on
the will. It is quite clear, even of (
sic)
a layman that the signatures are indeed different.






The
will was not executed in terms of the wills Act. It was not signed
in the presence of each other of the testator and its witnesses.






Its
purported custody by the (deceased’s) employer has been disproved;
in fact the employer almost saying that he is not aware of
the
existence of the will.





…






The document executed by the late
Gunda clearly does not comply with the prescribed formalities of s
8(1) of the Wills Act. I am
satisfied that the deceased did not
sign the will, because the will is simply a forgery, the signature is
indeed a forgery …”.









In the argument before us,
counsel for the appellants, Mr
Mazonde
abandoned the first three grounds of appeal, and relied only on the
fourth ground which reads as follows:






“In
all the circumstances, the learned court
a
quo
erred at law and
in fact by failing as it did, to appreciate that evidence of the
testamentary intention by the deceased had been
established in terms
of the Wills Act as amended”.










Mr Mazonde
submitted in support
of this ground that while the signatures purported to have been those
of the deceased were indeed forged, the
same did not apply to the
script, or contents thereof, which were genuine. This, he
contended, indicated that the deceased wished
the document to be his
will. Mr
Mazonde
relied, for this proposition, on s 8(5) of the Wills Act [
Chapter
6:06
], as amended by
Act 21/98, which provides as follows:





“5
where the Master is satisfied that a document or an amendment of a
document which was drafted or executed by a person who has since
died
was intended to be his will or an amendment of his will, the Master
may accept that document, or that document as amended, as
a will for
the purposes of the Administration of Estates Act [
Chapter
6:01]
even though it does not comply with all the formalities for:








(a) the
execution of wills referred to in


subsection (1)
or (2);





or






(b) …
”.











The learned
trial judge was satisfied that the document that was purported to be
the deceased’s will was a forgery. He noted
further, that the
document was not “very clear” in its provisions and that anyone
who read it would come to a different conclusion
as to what the
disposition was.





Having
considered the document in question, I agree with the trial judge’s
conclusion. The document is written in Shona and
no effort was made
by the legal practitioners concerned to translate it into English.
Based on my own understanding of the Shona
language, I find the will
long and rambling; it is disjointed and in some parts reads like a
letter. In other parts it contains
instructions to various people
to do or not to do certain things that are normally not relevant to a
will. The handwriting differs
in parts and it is clear sections of
the document were written on different occasions and then put
together in an effort to create
a document that is now being styled a
will. It is not in dispute that the deceased affixed his signature
to none of the various
pieces of paper that are purported to
constitute the will. Someone else did so after his death.





While the
purported will, at least in some of its many parts, may have been
drafted by the deceased, I am not persuaded one can
conclusively say
he intended the document to be his will. A will by definition is a
statement - written or verbal – by the testator
concerning how and
on what conditions, if any he wishes to have his estate distributed.





It can
safely be assumed that any reasonable testator who expects to have
his wishes followed would take some care in drafting his
will. He
would for instance, want such document to be clear in its terms.
More importantly, having taken the trouble as the deceased
in
casu
might have done, to draft the document in his own handwriting, such
testator would surely want to affix his signature to the document
to
ensure that it would be identified with him.





In my view,
it can hardly have been the intention of the legislator in drafting s
8(5) of the Wills Act, that any document said
to have been drafted by
a deceased person during his/her lifetime, no matter how confusing
and unintelligible its terms may be, should
be regarded as having
been intended by him/her to be his or her will. My reading of s
8(5) suggests that the document in question,
must have some but not
all of the recognisable characteristics of a will. In
casu,
one is at pains to identify a feature of the purported will that
would satisfy any of the requirements of a valid will.





As
long as it is accepted that the deceased’s signature on the
purported will was forged, the possibility of the whole document,
or
at least part of it, having similarly been forged, cannot be ruled
out. It would thus be unsafe to assume that the entire document
was
drafted by the deceased in his own handwriting. What is before the
Court is therefore a document which, in addition to the
other
shortcomings already referred to, may not all have been drafted, and
was certainly not executed – by the deceased. In short,
it is not
the sort of document envisaged in s 8(5) of the Wills Act.





The learned
trial judge in the court
a
quo
was in all
respects correct in his finding that the purported will of the
deceased, Aaron Mukoki Gunda, was not a valid will.





The appeal
can therefore not succeed and it is dismissed with costs.





SANDURA
JA: I agree.





MALABA JA: I
agree.


Mutumbwa,
Mugabe & Partners
,
appellants’ legal practitioners


Hove,
Lemani & Associates
,
first respondent’s legal practitioners