The
parties were living together between 1988 and 2006. During this period,
the appellant acquired and registered, in her name, property known as 23383
Pumula South, Bulawayo. The parties were neither married in terms of the
Marriage Act [Chapter 5:11] nor the Customary Marriages Act [Chapter
5:07]. In the Magistrates' Court, the issue was whether the parties had
conducted an unregistered customary law union. The trial magistrate held
that there was such unregistered customary law union. As a consequence of
that finding the court divided 23383 Pumula South, Bulawayo between the parties
as follows: 60% for the appellant and 40% for the respondent.
The
appellant's case is that the parties were not married and were not in an
unregistered customary law union. Her case is that the parties were in a
lengthy cohabitation relationship. Such cohabitation did not result in any
legal rights attributed to a marriage in terms of the laws of Zimbabwe.
The
issue for determination was primarily whether the respondent married the
appellant in terms of the Shona custom. This is so because the cause of
action is premised on the existence of an unregistered customary union between
the parties. In order to be successful in either General Law or Customary Law
suit, the plaintiff must plead a recognizable cause of action. In my view,
the fact that the parties had a lengthy concubinage does not clothe anyone of
the parties with a cause of action in terms of customary law which was used as
the basis for the claim in the court a quo. The trial magistrate, in her
judgment, made scant findings on the demeanor of the witnesses who testified.
This is not surprising because the magistrate misdirected herself in her
judgment when she stated:
“…, it is common cause that the parties lived
together as husband and wife for a long period of 18 years and that no children
born out of this union.”
This is
a material misdirection as the parties contested the issue.
The
appellant testified that there was no marriage, registered or unregistered
between her and the respondent. She was cross-examined at some length on
the issue by the respondent. The respondent vehemently asserted on the
existence of an unregistered customary union. He averred that he paid
lobola to the appellant's brother, the late Kenneth Godzi. The respondent,
on the one hand, called Lovemore Dzambu to support his case that the parties
were married. The appellant, on the other hand, called witnesses Tebsa
Moyo and Casper Godzi, who both supported her testimony that there was no
customary union between the parties. Tebsa Moyo is the appellant's elder
sister and Casper Godzi is the appellant's elder brother. Both stated that
the respondent was merely a “boyfriend” to the appellant. They said,
according to their custom, the respondent could not have met and negotiated the
customary marriage with Kenneth Godzi alone and secretly. The process
would have involved several other relatives like a paternal uncle, paternal
aunt, brother, and family members. In short, the issue of the existence of
a marriage between the parties was not common cause but, on the contrary, hotly
contested….,.
According
to the respondent, he negotiated and paid lobola to the appellant's late
brother. What can be gleaned from his evidence is that these negotiations
and payment were made secretly without the knowledge of her elder sister and
brother. In customary practices, it is a notorious fact that the payment
of lobola is not secretive and the relatives of the bride would not be ignored
about the event. In fact, close relatives are the first to know about such
a development. This cannot certainly be a private engagement between the
prospective son-in-law and the prospective brother-in-law. The negotiation
and payment of lobola involves a whole host of go-between, aunts and
relatives. The respondent did not garner corroboration to his allegation
that he paid lobola. The respondent is the only witness, whose credibility
was questioned and disbelieved by the trial court, albeit on a different issue
the house being in the sole names of the appellant. The respondent was the
plaintiff in the trial, so his failure to establish the agreement on the
payment of lobola and other marriage considerations, meant that he failed to
establish the existence of an unregistered customary law union. The trial
court has jurisdiction to apply customary law and can apply such law to the
distribution of the assets of the parties who were in such union – Feremba v Matika HH33-07. The court a
quo was dealing with a claim instituted under customary law so that question of
unjust enrichment (to achieve equity) is not applicable. The decisions
dealing with the General Law concept of unjust enrichment are not applicable to
the facts of this case. It was illogical for the trial court to have found
the existence of an unregistered customary law union in the face of the above
testimony. Once the respondent, as the plaintiff in court a quo failed to establish the existence of an unregistered
customary law union, his claim should have been dismissed.
Accordingly,
the appeal succeeds and the judgment of the trial magistrate is set aside and
substituted by the following:
“The
plaintiff's claim is dismissed with costs.”
