Approach re: Marriage Categories and the Effect of Classification of Marriages

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.

The plaintiff listed her grounds of appeal as follows:

“The learned Magistrate erred in awarding the Appellant only 15% of the value of the property with regard to the following factors:

1. The appellant's contribution to the acquisition of the immovable property, and subsequent construction of the house, whether financially, directly or indirectly, have been undermined, including -

1.1 Appellant's supervision of builders, during the construction period throughout, whilst the Respondent was away from home.

1.2 Appellant's total commitment where she would go on foot to buy most of the building material from Makoni Home Industry and the Builders Market using a push cart.

1.3 Appellant foregoing her social life during the period of construction of the property.

1.4 Appellant's contribution in selling goods brought home by Respondent for resale to raise capital for the construction of the house.

1.5 The parties lived together during which period the Appellant gave the Respondent social well being, companionship, peace of mind, and confidence much that while in his absence the Appellant would be trusted to commit herself to the construction of the property.

2. The learned Magistrate erred in finding that after consideration of the factors outlined in paragraphs 1.1 – 1.5 above, the Appellant deserved a paltry 15% of the value of the property.”

The appellant then prays for a “substantially higher percentage which is both fair and reasonable and commensurate with her contributions” and costs.

In a notice of amendment of grounds of appeal, the appellant submitted the following additional grounds of appeal:

“3. The court a quo erred in failing to make an analysis of the choice of law in order to provide for the application of General Law.

3.1 As a result, the court a quo erred in failing to apply the principle of tacit universal partnership which was the only legal regime available in order to do justice to the parties.

4. The court a quo erred in failing to be guided by the provisions of the Matrimonial Causes Act (Chapter 5:13) in coming to its conclusion.

5. The court a quo erred in dismissing the Appellant's evidence that her brother assisted the parties financially on the basis that the brother can claim his money from the Respondent.”

The appellant also amended her prayer by deleting the original one and substituting it with one calling for the setting aside of the order of the court a quo and awarding her 50% of the value of the immovable property and costs of suit.

Regarding the choice of law submission, the court a quo appears to have exercised its mind over it and made the decision to proceed in terms of General Law, as shown by the following exchange in the record of proceedings…,:

“CROSS EXAMINATION (Appellant being cross examined by respondent's legal practitioner)

Q: Would you have any problems if the sharing of property is done under Customary Law and not General Law?

A: No.

Q: You confirm you don't have an antenuptial contract in your marriage?

A: Yes.

Q: Are you aware that you should have advanced reasons why you have opted this court to proceed in terms of General Law at the expense of Customary Law?

LEGAL PRACTITIONER FOR PLAINTIFF (Objects): These points were raised as points in limine which he later waived. It is also filed of record that after that the matter was referred to Pre Trial Conference for matter to proceed to trial.

LEGAL PRACTITIONER FOR DEFENDANT: I am not referring to points in limine. This court is a Civil and Customary Law Court, and, even if plaintiff has chosen Customary Law, this court was still going to have this procedure. In Mashingaidze's case 1995 (1) ZLR 219, that was stated and I will hand over to court.

COURT: Objection sustained.”

Therefore, the ground of appeal raised by the appellant, in paragraph 3 above, falls away.

Regarding the direct applicability of section 7 of the Matrimonial Causes Act, the respondent is correct in pointing out that the marriage regime in casu is not recognized in that provision, but, the provision can be used as a useful guidance when all the other pre-requisites are met.

However, in seeking to raise the choice of law issue again in heads of argument, the respondent is in error. Had he intended to challenge the basis upon which the court a quo had proceeded, the respondent should have raised the point by way of a cross-appeal, which, in this case, he has not.

It is clear, therefore, that the court a quo proceeded on the basis of General Law principles, with the consent of both parties, and sought to answer the question pertaining to the percentage of the value of the immovable property the appellant was equitably entitled to.

The plaintiff's closing submissions also confirm this, wherein it is stated thus:

“Defendant raised some points in limine citing that the claim was not properly placed before the Honourable Court; for the sake of progress, the Defendant later waived the objections in limine based on the choice of law Mashingaidze v Mashingaidze 1995 (2) ZLR 219, and, by consent, the parties agreed to have the matter tried before this Honourable Court.”…,.

In Chapeyama v Matende & Anor 2000 (2) ZLR 356…, it was held as follows:

“I therefore come to the conclusion that the judgment of the learned trial judge would have been clearer if it had set out the following two consecutive findings, that:

(a) This is a matter where the justice of the case required, in terms of section 3 of the Customary Law and Local Courts Act [Chapter 7:05], that the General Law be applied;

(b) The elements of a tacit universal partnership have been established and that in considering the division of property under that concept useful guidance can be found in the provisions of section 7 of the Matrimonial Causes Act [Chapter 15:13].

It is, however, clear that the learned judge dealt with the distribution of the property between the parties as if he had made those specific findings. In the circumstances, I see no reason to interfere with the decision in that respect.”….,.

I respectfully associate myself with the above opinion, which, at any rate, is binding on this Court.

In dealing with the distribution of the immovable property which is the dispute in casu, the trial court proceeded as if it had made those findings and came to the conclusion that it did.

Many judgements of this Court, and indeed the Supreme Court as well, have rued the fact that where an unregistered customary law union is concerned there is no direct application of the provisions of section 7 of the Matrimonial Causes Act [Chapter 5:13]. See, for example, Mashingaidze v Mugomba HH03-99; Chapendama v Chapendama 1998 (2) ZLR; and Chapeyama v Matende & Anor 2000 (2) ZLR 356 where it was stated:

“It is clear that the learned trial judge felt compelled to apply those provisions (section 7 Matrimonial Causes Act) as a guide in the situation stated above, because of what he properly considered would have been an injustice done to the first respondent if Customary Law was applied. He, however, ought to have justified this intervention on the basis of section 3 of the Customary Law and Local Courts Act [Chapter 7:05] and not on what he stated as the court's reformative duty to interpret Customary Law progressively so as to adapt it to the changing social and economic conditions.”

Thus, just to add one's voice to the chorus of calls for legislative intervention in this area, women litigants in unregistered customary law unions seeking equitable relief in the distribution of property on the dissolution of their marriages have been knock, knock, knocking on heaven's door of section 7 of the Matrimonial Causes Act for far too long with varying degrees of success. More often than not they have had the door slammed shut in their faces. Occasionally, they have had the indignity of being grudgingly served from the side-door or even the window. Isn't just time, right now, that this forbidding door was thrown wide open for them as well?

As was pointed out in Chapeyama v Matende & Anor 2000 (2) ZLR 356…,:

“A 'divorce' under the regime of an unregistered customary law marriage is no less a divorce for the parties. It puts an end to co-habitation. It puts an end to other reciprocal obligations of the parties. It is a divorce in everything but name.”

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”

Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a universal partnership. It was accordingly prayed that it would be just and equitable for the court to order that a house shared by the parties during the partnership be sold and the proceeds jointly shared between the parties.

The defendant pleaded to the claim in a manner which both denied and accepted the existence of the customary union, the existence of the universal partnership, and the acquisition of the immovable property over which the plaintiff was claiming a right to a share.

I find that the defendant's legal practitioners filed a plea which was not only vague and embarrassing but which did not clearly set out the facts upon which the defence was based.

The errors I have referred to above notwithstanding, the matter went before a magistrate for trial, and, on 19 April 2007, the magistrate rendered a judgment in terms of which the plaintiff was awarded a fifty percent share in the immovable property.

The defendant then noted an appeal against the judgment.

The evidence adduced at the trial, in the court below, established that the parties had an unregistered customary union which resulted in the birth of one child. The parties stayed together from 1982 to 1986 when the plaintiff left the matrimonial home. During the period in question, despite the absence of a formal relationship, the parties conducted themselves and treated each other as husband and wife. Evidence was led to the effect that a customary marriage ceremony took place where the defendant paid part of the bride price (lobola). According to the plaintiff the defendant had not finished paying all of it when they separated.

The defendant accepts that the parties had such a union.

There are a number of issues on which the parties differ insofar as the evidence adduced at the trial is concerned.

The case for the plaintiff is that she had failed to return home after an excursion with the defendant. As a result, she and the defendant decided to get married. The defendant's case is that he and the plaintiff had not returned home. The next day, the plaintiff was told, by her relatives, she was not acceptable at home. She moved in with him. He was then forced to live with her, and decided to pay damages for having made her pregnant.

What is not in dispute is that the parties lived together from 1982 to some time in 1986....,.

From the evidence adduced before him, it is my view that the magistrate correctly concluded that the defendant had paid lobola for the plaintiff and the parties were married in terms of custom. The union was however never solemnised....,.

In terms of the Magistrates Court Act [Chapter 7:10] the jurisdiction of the court is provided for as follows:

“11. Jurisdiction in civil cases

(1) Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction -

(a) Excepting any other jurisdiction assigned to any court by this Act or any other enactment, the persons in respect of whom the court shall have jurisdiction shall be -

(i) Any person who resides or carries on business or is employed within the province;

(ii) Any partnership whose business premises are situated or, any member whereof resides, within the province;

(iii) Any person whatever, in respect of any proceedings incidental to any action or proceedings instituted in the court by such person himself;

(iv) Any person, whether or not he resides, carries on business, or is employed within the province, if the cause of action arose wholly within the province;

(b) With regard to the causes of action -

(i)…,.

(ii)…,.

(iii)…,.

(iv) In actions in which it is claimed a decree of divorce, judicial separation, or nullity of a marriage solemnized in terms of the Customary Marriages Act [Cap 5:07], including actions relating to the division, apportionment or distribution of the assets, whether movable or immovable, of spouses or former spouses of such marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Cap 5:13].”

A Magistrate's Court would therefore not have the jurisdiction to deal with this matter as a divorce in the absence of solemnisation of the union under the Customary Marriages Act [Chapter 5:07]....,.

In Mandava v Chasekwa HH42-08 the Appeal Court..., stated:

“It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Cap 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce of this country. Trial magistrates who deal with the estates of the parties to an unregistered customary union tend to fall into three errors;

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered;

(ii) Secondly, they fail to avert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limit when distributing joint estates at General Law.”

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.

In the affidavit, the respondent alleged that she was in an unregistered customary union with the appellant, and that, during the subsistence of the union, the parties had acquired certain household goods and effects. She gave the estimate value of each item that she alleged the parties acquired. She further alleged that due to the violent conduct that the appellant exhibited towards her, the union between them had broken down irretrievably. She ended the affidavit by praying that the court confirms the distribution of the assets as suggested by her in the affidavit.

It is not clear on the record how the matter was set down for trial….,.

The record, however, indicates that on the day of the trial, the appellant was in attendance and verbally indicated that he was opposed to the proposals made by the respondent. Prior to the set down date, he had not filed any pleadings or other papers in the matter.

The matter proceeded to trial with the parties giving evidence. For the purposes of this appeal, it is in my view not necessary that I go into the details of the evidence that each party led.

After hearing the parties, the trial court made an award that dissatisfied the appellant, prompting him to note an appeal to this court. In his Notice of Appeal, the appellant challenged the distribution that was made in the lower court and prayed that it be set aside.

The parties were not legally represented at any stage of the legal battle between them. We thus could not engage them at all regarding the legal issues that arise in this appeal.

The legal points made in this judgment are therefore our opinions without the aid of argument by counsel.

The two issues that arise, are, in my view, so important that a copy of this judgment will be dispatched to the Chief Magistrate for his attention and for the benefit of other trial magistrates who may be falling into the same pitfalls that the trial magistrate in this matter fell.

I shall make the necessary order for this to be effected by the Registrar….,.

The second issue that arises in this appeal is one that escaped a number of trial magistrates from the nature of the appeals that are reaching this court.

The issue is of a socio-legal nature and requires intervention from Parliament to correct the anomaly that exists between registered and unregistered customary unions.

It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Chapter 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce of this country.

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]...,.The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006, however, things came ...

The parties married on 13 December 1992 in terms of the Marriage Act [Chapter 5:11]...,.

The marriage was an unhappy one filled with physical and emotional abuse. The plaintiff left home on numerous occasions but always returned in the hope that the marriage would work. In October 2006, however, things came to a head and the plaintiff decided that she had had enough. The plaintiff moved out of the matrimonial home and left the two minor children in the care of the defendant. In February 2007, following an incident between the defendant and his daughter, Diana, the plaintiff obtained custody of both children....,.

She denied that Yolanda Madondo had contributed to the acquisition of the property....,.

The defendant confirmed that Yolanda Madondo was his "wife" and she started living with him in the matrimonial home in 2007. He stated that she also contributed towards the development of both properties and any award that the court will make should take this into account....,.

Yolanda Madondo also gave evidence before the court.

She testified that she married the defendant under customary law in 1993 during the subsistence of the plaintiff's marriage. She said that they have always had a good relationship and would travel together to their communal home with their children. She stated that she contributed in the construction of the Glen View house as the defendant had told her that she would live there. She stated that prior to moving to Queensdale she had lived in rented accommodation which was paid for by the defendant. She stated that she contributed towards the construction of the chalets at the matrimonial home. She purchased the rocks that built the chalets and the grass for the thatching.

In relation to the Glen View property, she stated that she paid for the water to mold the panels for the wall and cooked for the builders....,.

The defendant insisted that Yolanda Madondo was his wife and denied that he was committing adultery when he was quite aware that he was married in terms of a law which only allowed him to have one wife....,.

In my view, it is clearly wrong for a man to marry a woman under a law which obliges him to have only one wife and to thereafter proceed to marry another under customary law and proceed to live with both of them in a polygamous setting...,.

The law allows parties to a marriage to make an election with regards the type of marriage they wish to enter into. Once one has elected to marry under the Marriages Act [Chapter 5:11] one cannot thereafter marry another in terms of customary law as the defendant did....,.

Yolanda Madondo, in her evidence, told the court that she contributed in the development of the Glen View stand and the Queensdale property.

I did not believe her and merely saw it as a ploy by the defendant to defeat the plaintiff's claim in that property as the property is in the name of the plaintiff and the defendant. In my view, if she did make any contributions she did so in the clear knowledge that the defendant was married to another woman in terms of a civil marriage and she could have no claim to their joint estate.

HH209-10 : PETER NYANDORO vs CHRISTOPHER MUKOWAMOMBE and JULIA MUKOWAMOMBE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

Emilia Mukowamombe was the next witness. She testified that the deceased was her elder sister. She stated that the applicant did not visit the deceased when she was ill or when she was admitted in hospital. She further stated that although he attended the funeral she did not know whether or not he conducted any rituals. In cross examination she stated that as far as she was aware the applicant and the deceased had dissolved their union. At the time of the deceased's death they were no longer on speaking terms. She stated that, to her knowledge, when a customary union is over, one party just leaves. She had heard of the word "gupuro" a long time ago when she was still a child and did not think it had any application to present day relations.

Gladys Guri told the court that the deceased was her young sister. The applicant had children with her. She stated that the applicant and the deceased were no longer staying together at the time of her death. She was present at the deceased's funeral and attended the family meeting. She stated that the applicant was not present at that meeting and was not asked to perform any rituals as a son in law. In cross- examination she stated that she is married in terms of customary law. She also stated that if she and her husband want to dissolve the marriage the one party just leaves. She stated that she is aware of the practice of paying "gupuro" but the deceased did not pay any and neither did the applicant.

Two traditional chiefs testified in this case. They were Joseph Magayo who is known as Chief Hata and Mark Nyaada who is known as Chief Makoni.

The two Chiefs were from the districts where the applicant and the first respondent live. They were called to clarify the position relating to the dissolution of customary marriages. Although they were from different parts of the country they were both agreed that a marriage, at customary law, can only be dissolved by the tendering of "gupuro." They were both adamant that "gupuro" is not paid in private but is paid through a go between (munyai) or "tete." If no "gupuro" has been paid the parties are merely separated and not divorced. They were also of the opinion that, in practice, the period of separation was not of any significance. Chief Makoni, however, went further and stated that the position can be altered if the wife marries someone else as under customary law a woman cannot have two husbands. The second marriage thus has the effect of dissolving the first one even though no "gupuro" may have been paid.

In determining the matter before me, however, the issue of whether or not they were still communicating was of little relevance as both Chiefs stated that in cases where "gupuro" had not been paid the parties remain married. I had no difficulty in accepting their evidence in this respect as it is totally in line with the legal position as set out in the case of Pasipanodya v Muchoriwa 1997 (2) ZLR 182 (S). MUCHECHETERE JA when dealing with a similar part stated as follows…,-

"This is because, in my view, the marriage was not dissolved - a marriage under an unregistered customary law can be dissolved under customary law either by giving the wife "gupuro" or before a customary law court. The parties merely separated. On separation, there was no proper distribution of the matrimonial property. "

The respondents submitted, in argument, that "gupuro" is no longer a requirement for dissolving a customary law union because custom is dynamic and has become obsolete. The respondents submitted that this position is confined by the fact that every Shona person goes through the traditional marriage ceremony when they marry even if they go on to register their marriages under General Law but very few of them tender "gupuro" when they divorce.

In my view, however, this argument could not be sustained.

Firstly, the two traditional leaders who gave evidence were quite categorical in this regard as they testified as to the practice which is done in their communities at present. While they came from different parts of the country they were both of the same view that where parties have married in terms of customary law then their union can only be dissolved in terms of customary law. Secondly, the respondents argument that “gupuro” was no longer relevant as modern society was, in my view, self-defeating because Africans who then subsequently register their marriages in terms of General Law do not pay “gupuro” to dissolve their marriages because they have decided that they do not wish customary law to apply to them and thus there is no requirement for them to tender “gupuro” when they dissolve their marriage. They have made an election for the General Law to apply to them and they obviously approach the court for an order dissolving their marriage. The position is entirely different where parties have remained married in terms of customary law. In my view, they have made a clear election that they wish that customary law applies to them. Parties married under General Law prove their divorce by producing a Divorce Order. How would persons married under customary law prove that they have dissolved their marriage if “gupuro” was not paid and accepted? In any event, the approach suggested by the first respondent is completely alien to customary law which demands that on marriage relatives from both sides gather to witness the payment of lobola and on divorce too the divorce token is paid in the presence of witnesses. Further, the lobola is paid to the family of the bride and it is unimaginable that the dissolution of the marriage could be without the involvement of the family. Whilst it was accepted in this case that the applicant had not paid lobola but only "tsvakirai kuno" evidence was led to the effect that once this has been paid the applicant is recognized as a customary law husband.

It seems to me, therefore, that the applicant has established that he was the customary law husband of the deceased at the time of her death and is entitled to such a declaration. I accordingly make the following order –

1. The applicant be and is hereby declared the surviving spouse of the late Alice Mukowamombe.

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI
Ruled By: CHITAKUNYE J

The plaintiff and defendant began living together as man and wife in 1998 after the defendant had paid lobola for the plaintiff. Their union was never solemnised. Their union was blessed with three children who are still minors. In July 2009, the plaintiff issued summons out of this court against the defendant. She alleged that ...

HH133-11 : PLAXEDES MUKONDE vs PAUL ZENGENI
Ruled By: GUVAVA J and MAWADZE J

This appeal serves to highlight once again the errors which are made by trial magistrates when dealing with cases involving an unregistered customary law union. The first error related to the recognition of the customary union as a valid marriage. In terms of section 3 of the Customary Marriages Act [Chapter 5:07] no marriage ...

HH287-14 : FRANCIS MAKANDIRASA MAZARURA vs RHODAH KATIVHU
Ruled By: MWAYERA J

The plaintiff, also from the import of his evidence and witnesses, in particular his uncle and the Village Head, sought to prove ownership by alluding to the fact that the defendant had been divorced by his father, and, as such, had no right to remain on the Plot. He sought to rely on the custom ...

HH288-14 : CHRISTINE GOREMUSANDU and GODFREY MAHENGA vs EUNICE CHITAMBARA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MWAYERA J

It is also important to mention, in passing, that it emerged in submissions that the applicant was seeking to have the marriage of the first respondent to the late Godfrey Zakeo Mahenga nullified. Our law is very clear that the existence of a customary law marriage cannot nullify a civil marriage or existence of any ...

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

Section 68(4) of the Administration of Estates Act [Chapter 6:01] is an interesting provision. It reads: “A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse, shall be regarded as a valid marriage for the purposes ...

Section 68(4) of the Administration of Estates Act [Chapter 6:01] is an interesting provision. It reads:

“A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse, shall be regarded as a valid marriage for the purposes of this Part even if, either of the parties was married to someone else in accordance with customary law, whether or not that customary law marriage was solemnized in terms of the Customary Marriages Act [Chapter 5:07].

Provided that, for the purposes of this Part, the first marriage shall be regarded as a customary law marriage.”

Can that section be interpreted grammatically?

The Supreme Court said, in S v Nottingham Estates (Pvt) Ltd 1995 (1) ZLR 253 (S) 256 E:

“The primary rule of interpretation is, of course, to endeavour to ascertain the intention of the law maker from an examination of the provision under consideration placed in proper context. A court will commence its inquiry by giving the word its grammatical signification, unless it is clear that the literal sense, when so applied, defeats the legislative intendment. In such event a deviation from the ordinary meaning is justified, provided always that the word is sufficiently flexible to admit of another meaning by which such intention can be better effected.”

If the section is given its grammatical signification it means that a party who is married in terms of customary law, whether in the form of a customary union or a marriage solemnized in terms of [Chapter 5:07], is entitled to contract a marriage in terms of [Chapter 5:11], and, for purposes of Part IIIA of the Administration of Estates Act [Chapter 6:01] that marriage will be valid. The section used the phrase “either party” meaning that a woman married in terms of customary law can contract a marriage in terms of [Chapter 5:11] with another man and such marriage shall be regarded as valid for inheritance purposes. She cannot, of course, contract a marriage in terms of [Chapter 5:11] if she is married in terms of [Chapter 5:07]. However, a customary union is not a marriage but is recognized for limited reasons, such as inheritance and maintenance.

It is only such a construction of section 68(4) of the Administration of Estates Act [Chapter 6:01] which does not lead to an absurdity.

In our law, a woman cannot marry two (2) different men. What that provision means, therefore, is that when she elects to contract a marriage with another man in terms of [Chapter 5:11], the latter marriage automatically terminates the preceding customary marriage.

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

It is trite that a customary law union is created upon payment and acceptance of “roora” at a ceremony involving the groom, or his relatives, and the father, guardian or some relative of the bride. The parties negotiate through a go-between whose services are paid for by the groom's family….,. MOREBLESSINGS BUSI-CHITAURO-MAWENA of the African ...

HH65-15 : SYDNEY USHE vs DOROTHY VIOLET MADZONGA
Ruled By: UCHENA J and MWAYERA J

The appellant sued the respondent, in the Magistrate's Court, seeking a decree of divorce and ancillary relief. They were married in terms of the Customary Marriages Act [Chapter 5:07]. The trial court granted him the decree of divorce and orders granting custody of their minor children to the defendant and distribution of their matrimonial property. The appellant was ...

HH77-15 : JONASI DONDO N.O. vs MAGNA MUGANHIRI and RICKY KANDEMWA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

Whether the defendant was lawfully married to Isaac Chabveka No convincing evidence was, in my view, put forward to support the claim by the first defendant that she was indeed a wife at customary law and not just a mistress at the time when the defendant married Liya in 1995 under a civil union. Notably, no ...

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

Section 68(4) of the Administration of Estates Act [Chapter 6:01] states that:- “A marriage contracted according to the Marriages Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for the purposes of this Part, even if, when ...

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The applicant avers, in her founding affidavit, that she was customarily married to the late Rejoice Ncube who died at Bulawayo on 31 March 2016. The marriage was conducted in accordance with customary rites sometime in April 2015….,. The applicant provided evidence of the customary marriage in the form of a note which she said ...

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O.
Ruled By: CHIRAWU-MUGOMBA J

The alleged customary law union between the applicant and the first respondent In her founding affidavit, the applicant averred that she was in an unregistered customary law union with the first respondent before 'upgrading' their marriage to one under the Marriage Act [Chapter 5:11]….,. In both this present application and in HC4339/15, the applicant placed emphasis on the fact that ...

HH272-15 : VENENCIA CHIMINYA vs ESTATE LATE DENNIS CHIMINYA and PASSIVELY CHIMINYA and THE MASTER OF THE HIGH COURT
Ruled By: MWAYERA J

It is trite a customary law marriage is a recognised marriage for proprietary, inheritance and maintenance rights.

View Appeal
HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE)
Ruled By: UCHENA J

In 1966 the plaintiff fell in love with the defendant. In 1967 they started living together as husband and wife while the plaintiff was paying lobola. When lobola had been paid, to the satisfaction of the in-laws, they registered their customary law union in 1972. When the parties got into the customary law union in 1967 ...

When the parties got into the customary law union in 1967 the defendant had just left school after attaining a Junior Certificate level of education. The plaintiff was then employed as an Extension Officer by Connex.

During the subsistence of the marriage he rose in status and was able to first buy a house in Kambuzuma, then Greendale, and, later, Christon Bank. He eventually bought Wonder Valley Farm, the major property in dispute in this case.

The defendant was, in the early stages of the marriage, a house wife. With the assistance of the plaintiff, she studied and passed 'O' levels, trained as a bookkeeper/secretary and driver. She worked during the period 1980–1986. Her earnings, compared to the plaintiff's, were insignificant. The plaintiff was generous as he did not make demands on her earnings. He allowed her to use her salary as she pleased. She said she used all her earnings in the home. The plaintiff conceded that she would buy bread and milk and give children pocket money.

The plaintiff initially moved to Wonder Valley Farm on his own leaving his family in rented accommodation in Marlborough, Harare. He said it was because his wife was against the acquisition of the farm. She said it was because the children had to wind up their schooling at the schools they were attending before being moved to boarding schools then she would join her husband at the farm. She eventually left employment and joined him at Wonder Valley Farm in 1987.

They stayed together at Wonder Valley Farm from 1987 till October 2002 when the plaintiff sent his wife to their eldest daughter for counselling. He subsequently sent all her personal belongings to her parents indicating that he no longer loved her.

The plaintiff has now issued summons seeking the following orders:-

(a) A decree of divorce.

(b) An order that the matrimonial property be divided between the parties in terms of paragraphs 9 and 12.

(d) Each party bears their own costs….,.

In reconvention, the defendant seeks the following orders:-

(a) A decree of divorce.

(b) Maintenance for herself in the sum of $2,000,000= per month until she dies or remarries.

(d) 50% of the Domboshawa house.

(e) 25% of the assets of the farm.

(f) 50% of the value of the movable assets in her annexure B.

(g) That the movables be shared as suggested by the plaintiff.

(h) That the plaintiff pays costs of suit.

At the pre-trial conference, the following issues were agreed -

(1) Whether the breakdown of the marriage relationship was at the instance of the defendant or the plaintiff.

(2) Whether the properties listed by the parties were acquired during the subsistence of the marriage as alleged or at all.

(3) Whether the property proven to have been acquired during the subsistence of the marriage should be shared as proposed by the plaintiff or as proposed by the defendant.

(4) Whether the defendant is entitled to maintenance from the plaintiff. If so, the rate thereof….,.

Though the couple started from humble beginnings, they ended up as prosperous farmers and owners of a farm, a company which runs the farm, and various farm and household movable assets. Their standard of living, and the involvement of a company, justified the hearing of their case by this court in spite of their having been married in terms of customary law

I must, at the outset, say, from the evidence led this seems to have been a happy marriage which remained so for 35 years. Four children were born to the marriage, two boys and two girls. The children were educated at expensive multi-racial schools and the girls have acquired high qualifications. The boys, too, have achieved success in life. All the children are now adults. The girls are now married. The elder one lives in Harare. The younger one lives in Germany. The boys are twins. One is in the United Kingdom. The other is in Harare and is currently staying with the defendant in Vainona. He got married in 2002, at the time the parents' marriage had landed on marital rocks. His wedding seems to have been the final breaking point after the marriage had been severely tested by the parents' disagreement on when to go and see their grandchild born to their younger daughter living in Germany.

The Irretrievable Breakdown of the Marriage

The parties blamed each other for the breakdown of the marriage.

According to the plaintiff, it was because the defendant went to Germany without his authority, and, thereafter. she influenced Ronald to go ahead with his wedding with or without his blessing.

Evidence led reveals that the parties should have gone to Germany together. They disagreed on when they should have gone. The plaintiff said they should have gone after harvesting. The defendant agrees that that was the issue they disagreed on. She then opted to go alone. When she returned, they did not talk to each other. The tension in the home resulted in the plaintiff calling a meeting at which the family discussed Ronald's wedding. He asked Ronald to postpone the wedding. The defendant objected and told Ronald to go ahead with the wedding with or without the plaintiff's involvement. The plaintiff did not attend his son's wedding as a result. He only sent him his wedding gift of $1,000,000=.

The plaintiff, thereafter, sent the defendant to their eldest daughter for counselling. She did not come back and that marked the end of a marriage of 35 years.

The defendant, in evidence, said the plaintiff's lack of love for the children and his infidelity caused the breakdown of the marriage. She mentioned his not being in a hurry to go and see their daughter and grandchild in Germany and ordering the postponement of Ronald's wedding as examples. She mentioned his being in love with other women.

The plaintiff gave his evidence well. He struck me as a firm man who brooks no nonsense. I have no doubt that his version is the truthful one as to what caused the breakdown of the marriage. His evidence is supported by the defendant's on the events leading to her being sent to their daughter for counselling.

While the plaintiff's reaction to the defendant's apparent challenge on the two issues involving the children may not depict him as a caring and loving father, the manner in which he brought up his children certainly proves he is a loving and responsible father.

The issue is simply what caused the breakdown of the marriage?

In my view, though the defendant had suspicions that the plaintiff was not being faithful to her, that certainly played no part in the breakdown of the marriage. It is common cause that they had both gone for AIDS tests and they were found to be negative. They continued to happily live together as husband and wife until the issue of the Germany visit arose.

As already indicated, trouble started on the disagreement over the visit to Germany to see their younger daughter and a grandchild and Ronald's wedding was the final breaking point.

It seems to me both were strong-headed and none was prepared to defer to the other.

As the plaintiff's reasons for the breakdown of the marriage have been confirmed by the defendant's evidence, he will be granted the divorce he seeks….,.

In the result it is ordered as follows:-

1. That a decree of divorce be and is hereby granted in terms of the plaintiff's claim.

HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

It is common cause that the parties are not legally married. The parties entered into a customary law union in 2002 and have been staying together as “husband and wife” to date….,. A customary law union is not regarded as a valid marriage in terms of our law and is only recognised for limited purposes provided ...

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

Inroads have been made in recognising customary law unions as marriages for proprietary, maintenance, and children's issues as evidenced by not only precedent but legislative measures.

The administration of Estates Act [Chapter 6:01], section 68 thereof, recognises a surviving spouse as a beneficiary regardless of the marriage registration status. The Matrimonial Causes Act [Chapter 7:05], section 7, is handy when it is comes to division of property, even for unregistered union, where the General Law principles of unjust enrichment and universal partnership existed or have been shown to exist.

The principle of equitable sharing on jointly acquired property is internationally recognised and our courts, in pronouncements in decided cases, have endeavored to uphold such a principle where universal partnership has been established.

It is also worth noting that also to buttress this approach is the constitution of Zimbabwe Amendment (No.20) Act 2013 which prohibits discrimination. Section 56 reads:

“All persons are equal before the law and have a right to equal protection and benefit of the law.”

Section 56(3) reads:

“Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as nationality, race, colour, tribe, place of birth, ethnic or social language, class, religious belief, political affiliation opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born out of wedlock.”...,.

In Mashangedza v Mutsvangwa HH214-13 MAWADZE J took the approach that General Law should apply in cases where land rights are involved irrespective of whether the union was customary or not as to do otherwise would be discriminatory against those women married customarily.

I entirely associate with Honourable MAWADZE J's sentiment when he quoted with approval remarks in Ntini v Masuku 2003 (1) ZLR 638 where the judge stated that time has come for a customary union to be recognised as a marriage institution for all intents and purpose; it serves the same purpose as a registered marriage.

It is that discrimination, on nature of marriage, which the Constitution sought to outlaw by outlawing custom or law that is discriminatory.

HHH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

A marriage is a contract and the parties must declare their intention and eligibility to marry before the marriage officer, under oath, in the presence of each other.The State alleges that the licence and marriage certificate were completed without the knowledge and involvement of the appellant's husband.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

A marriage is defined as a sui generis contract entered into by two willing parties (see NCUBE, Family Law in Zimbabwe 1987)....,. Superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of ...

A marriage is defined as a sui generis contract entered into by two willing parties (see NCUBE, Family Law in Zimbabwe 1987)....,.

Superior courts, inclusive of the High Court, have inherent jurisdiction to protect and regulate their own process and develop common law in so far as the interests of justice are maintained: see section 176 of the Constitution.

In the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 GUBBAY ACJ…, stated that;

“…, law in a developing country cannot afford to remain static…, it must adapt itself to fluid economic and social norms as and values and to altering views of justice.”

In making that pronouncement, he did not seek to usurp the legislature's function of making the law. Rather, he buttressed the need to develop the common law taking into account the societal interests which are the interests of justice.

This observation I make is made clear when one considers the facts of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143.

The court in that case had to answer the question whether a wife married under an unregistered customary union has a right of support and thus a right to compensation for loss of support.

The court had to do away with discrimination between a customary law marriage and a civil marriage. The court had to protect the interests of widows who are married under customary law by developing customary law to allow widows of customary law marriages to have a claim against third parties for the wrongful death of their spouse.

My understanding of the reasoning in Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 is that the court, in the interests of justice, can develop common law, but, that this does not amount to usurping the legislature's function of making law.

The same sentiments were echoed by KENTRIDGE AJ…, in Du Plessis and Others v De Klerk and Another (1966) ZACC 10 1996 (3) SA 850 quoting R v Salituro (1992) 8 CRR 2nd 173 when he remarked that:

“Judges can, and should, adapt the common law to reflect the changing, social, moral, and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law…,. In a constitutional democracy such as ours, it is the legislature, and not the courts, which has the major responsibility for law reform…,. The judiciary should confine itself to these incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.”…,.

Clearly, courts have a duty to develop the common law whenever it is warranted and in conformity with the interests of justice....,.

Any development of the common law...,, ought to be underpinned on the interests of justice, and, of course, in conformity with the Constitution.

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:“IT IS ORDERED THAT:The estate of the ...

“IT IS ORDERED THAT:

The estate of the late Manuel Arthur Da Silva shall be distributed in terms of section 18 of the Wills Act [Chapter 6:06].”

The applicant claims that she was married to the late Manuel Arthur Da Silva in terms of an unregistered customary law union in 1990, with whom she had five children, three of them being minors. Manuel Arthur Da Silva, having died on the 28th August 2006, the applicant claims that her children are entitled to inherit from the deceased in their capacity as legitimate children.

The application is opposed by the first respondent who denies that the applicant was married to the late Manuel Arthur Da Silva in terms of customary law.

Further, the first respondent denies that the applicant's children are entitled to inherit from the deceased as legitimate children.

It is not in dispute that the deceased and the first respondent's mother were divorced in 1978. In 1979, the deceased then proceeded to write a Will bequeathing his entire estate to his daughter, the first respondent. The estate of the late Manuel Arthur Da Silva was registered with this court under DRB No. 855/06. The first respondent was appointed Executrix Dative on the 27th August 2006.

The estate has since been wound up....,.

The Merits

The applicant claims, in the founding affidavit, that, she entered into an unregistered customary law union with the late Manuel Arthur Da Silva sometime in 1990. The same averment is boldly asserted in the applicant's Heads of Argument.

The applicant has chosen not to place before the court any evidence, whether verbal or written, to prove that indeed there existed a customary marriage between the applicant and the late Manuel Arthur Da Silva.

It is not entirely clear why the applicant took it for granted that the court would, on her mere say so, agree that there existed such a customary union.

It has not been disputed that the applicant is of mixed race, colloquially referred to as “coloured”. The late Manuel Arthur Da Silva was of Portuguese nationality and European descent.

It is common cause that neither the applicant, nor the deceased, could enter into a customary law union, and such a union would be alien to them.

African customary law unions are usually between persons of African descent and follow the rules and customs of African customary law.

The two parties, the applicant and the late Manuel Arthur Da Silva, could never, by any stretch of imagination, claim to have entered into a union in accordance with the customary practices and are therefore not subject to customary law. Their relationship or union could never be elevated to a customary law union.

The applicant has not provided the court with any evidence that the marriage between the parties was solemnized in terms of customary law. There is no evidence that the late Manuel Arthur Da Silva undertook the requisite procedural requirements to solemnize a customary law union and no lobola was paid.

The first respondent's legal practitioner referred the court to the case of Vuyisile Khanye v Sibongile Msipha NO and Others HB51-05. The matter is relevant to the present case.

In that matter, the applicant could not provide any evidence as to the existence of a customary marriage. The learned judge, NDOU J, alluded to the fact that it was important to file affidavits from relevant parties, such as aunts and go-betweens, as proof of the existence of a customary marriage. The learned judge also cited with approval the cases of Mtuda v Ndodzo 2000 (1) ZLR 710 (H); Ntini v Masuku HB69-03; Muringaniza v Munyikwa HB103-03; and Matibiri v Kumwe 2000 (1) ZLR 492 (H).

In casu, the applicant has failed to discharge the onus to prove, on a balance of probabilities, that she entered into a valid customary law union with the late Manuel Arthur Da Silva.

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for ...

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.

The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for the reason that the Notice of Appeal was fatally defective.

FACTUAL BACKGROUND

The applicant is a citizen of the United States of America (USA) even though he was born in Russia. The respondent is a Zimbabwean citizen. The two met in 2011 in Harare, Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.

They never registered a legal marriage.

The parties association was blessed with a boy child, called Orrin, who was born on 23 July 2013.

During the period extending from 2015 to 2019, the applicant secured employment in Russia, and, as such, became resident in that country. In 2016, the respondent and the boy child, Orrin, followed the applicant to Russia where the family took up residence.

It was during the period of their temporary residence in Russia that the couple decided to have a second child. Owing to some health challenges, the respondent could no longer carry the pregnancy. They decided to have the child through surrogacy and found a surrogate mother with whom a Surrogacy Agreement was entered into.

It was signed by the applicant, the respondent, and the surrogate mother on 2 March 2018.

The Surrogacy Agreement stated, in pertinent part:

“We undertake to assume the equal rights and obligations of parents with respect to the children, born by 'surrogate mother' after embryo transfer to the uterine cavity of 'surrogate mother', in terms of their upbringing, as defined by the Russian legislation on family and marriage.”

In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.

Unfortunately, the parties relationship hit turbulence, and, a short while after the birth of the child, they commenced living apart.

Although the surrogate mother had given her consent for them to register the child as their own, as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.

Acting together, they instituted a lawsuit against the Registry Office for their recognition as the parents of Elizabeth.

On 27 September 2019, the Meshchansky District Court of Moscow allowed the State registration of the child and for the respondent to be registered as its mother. The applicant was not so lucky. His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.

In doing so, the applicant took the boy child, Orrin, with him.

Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to the United States of America with the respondent's consent, while the respondent's position is that the applicant abducted Orrin and deserted her and Elizabeth.

It is however not in dispute that the respondent and Elizabeth were left stranded in Russia. They had been in that country on the applicant's expired VISA.

The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe. In due course, the duo found their way to Zimbabwe, in November 2019, where they have remained to this date.

The applicant was aggrieved.

He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of section 3 of the Child Abduction Act [Chapter 5:05].

The basis of the applicant's case was that the removal of the child from Russia, and its retention in Zimbabwe, are unlawful.

The applicant sought a declaratory order to that effect. Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties parental rights in those jurisdictions.

According to the applicant, Russia was the child's habitual residence. He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.

The respondent opposed the application.

According to her, the parties had agreed to return to Zimbabwe and settle here. She stated that an email she had written to the applicant's lawyer, insinuating the existence of an agreement with the applicant for their relocation to the United States of America, had been written under duress. The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia. According to her, the child was lawfully retained as a Zimbabwean.

The High Court dealt with a number of approaches in seeking to determine the child's habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

It concluded, that, while the issue of the intention of the parties was key in determining habitual residence, the child's parents never formed an intention to settle in Russia. They travelled there for work only and for that reason Russia was not the child's habitual residence. It could not be returned to that country.

By the same token, the High Court found, that, it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention's purpose of restoring the status quo ante.

Finding the Hague Convention inapplicable, the High Court dismissed the application.

The applicant was dissatisfied.

On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court. The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals. It was struck off the roll.

THE APPLICATION

The appeal, having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal. The application before me was filed on 9 April 2021 – just eight (8) days after the initial appeal was struck off.

Clearly, there was no material delay in seeking condonation.

The applicant's explanation for failure to comply with the Rules is, that, right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal. The explanation is actually given by the applicant's legal practitioner who takes ownership of the defective prayer in the initial appeal.

On the prospects of success on appeal, the point is made, on behalf of the applicant, that, the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant would also want to contest the High Court's finding that Russia was not the child's habitual residence.

The respondent opposes the application.

In doing so, the respondent asserts, that, the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia. That country could not possibly be said to be the child's habitual residence in the circumstances of the case. Accordingly, the High Court's decision cannot be assailed.

In the respondent's view, the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child. She denies unlawfully retaining the child in Zimbabwe....,.

THE LAW

What the court has regards to in an application for condonation is now settled. The court has a discretion, which is exercised judicially, in considering an application of this nature. Relevant factors in this regard are;

(i) The degree of non-compliance with the Rules of court;

(ii) The explanation for the failure to comply;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The interest of the respondent in the finality of the judgment;

(vi) The convenience to the court; and

(vii) The avoidance of unnecessary delays in the administration of justice.

See Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.

While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complemented by good prospects of success on appeal: see Khumalo v Mandeya and Another 2008 (2) ZLR 203 (S).

APPLICATION TO THE FACTS

The judgment sought to be appealed against was handed down on 1 October 2020. The applicant's putative appeal, under case number SC421/20, was struck off the roll on 1 April 2021. There was no delay in filing this application after the striking off of the appeal.

The applicant's failure to comply has been explained as the oversight of his legal practitioner who drafted a defective Notice of Appeal.

I accept, that, this Court has stated, in the past, that, there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner's dilatoriness or lack of diligence: see Musemburi and Another v Tshuma 2013 (1) ZLR 526 (S)…,.

I take the view, however, that this is not a case in which the legal practitioner's lack of diligence should be visited upon the applicant. This is so mainly for two reasons:

(i) The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal. It is a fault that cannot be said to be gross.

(ii) The second is that I hold the view that the issues raised by the proposed appeal are arguable. They deserve the attention of the full Bench of the Appeal Court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.

I can only refer to the manner in which the court a quo dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention's application was not triggered.

For a matter to fall under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), its Article 3 must be satisfied. It provides:

“The removal or the retention of a child is to be considered wrongful where -

(a) It is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

(b) At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.

The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”…,.

In Peacock v Steyn 2010 (1) ZLR 254 (H) the court found that the existence of a custody agreement between the parents of minor children who are not married, regulating their rights of shared custody, triggered the application of the Hague Convention. This is by virtue of Article 3.

In the present case, the Surrogacy Agreement I have referred to above provided some kind of shared custody between the parties.

That, therefore, presents the applicant with an arguable case on appeal.

Apart from that, counsel for the applicant drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia. He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.

The email was addressed to the respondent's legal practitioner instructing him to relay it to the applicant's legal practitioner for the attention of the applicant. It reads:

“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps. As you have previously indicated, you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children. We will of course need to travel to Zimbabwe first in order to get visas, and, after that, will proceed to America. Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited. I look forward to receiving your response and finally ending the current separation from Orrin.”

I am aware that there was a suggestion by counsel for the respondent that the email was written under duress - the particulars of which were not clearly articulated.

That is however immaterial for our present purposes. What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.

If that is the case, the applicant is entitled to argue, on appeal, that, the retention of the child in Zimbabwe, in breach of such agreement, brings the case under the ambit of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

I am not sitting to determine the appeal, but merely to consider whether it is arguable.

I think it is.

A case has been made for the grant of the indulgence of condonation.

Regarding the issue of costs, counsel for the applicant tendered to pay the respondent's costs regardless of the outcome of the application. This he did upon a realisation that the application was necessitated by the applicant's blameworthiness.

An award of costs will be made by consent.

In the result, it be and is hereby ordered as follows:

1. The application for condonation for non-compliance with Rule 38(1)(a) of the Supreme Court Rules, 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal against the judgment of the High Court handed down on 1 October 2020 as HH620-20 be and is hereby granted.

3. The applicant shall file his notice of appeal within seven (7) days from the date of this judgment.

4. By consent, the applicant shall bear the costs of this application.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

As early as generations before 2000, lobola payments in Zimbabwe were recorded in writing showing how much was charged for who, for what, by who, what was paid, the balance, and when such balance would be paid.The appellant was asked, in cross-examination, as to who married her off and her ...

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

The second and only witness for the plaintiff was Flora Dhliwayo, a sister to the plaintiff.

Her evidence was largely unhelpful to the court. She repeated that the plaintiff had, through her own endeavours, purchased the property in dispute. She averred, that, she had gone to view the property with her sister before its purchase. She however played no further part in the transaction. She did not witness the signing of the agreement of sale between the seller and the purchaser. She informed the court, that, the reason the property was registered in the names of the deceased was because the plaintiff was pregnant at the time, and, further, the plaintiff was not employed at the time.

The plaintiff's witness did not assist the plaintiff's case in any meaningful way.

The Defendant's Case

The defendant gave evidence and did not call any witnesses in support of her case. She testified, that, on 22 September 1972 she was married to the late Jubane James Jack in terms of the Marriage Act [Chapter 37] (as it was called then).

The defendant said, that, when they were married, they moved into a house belonging to the National Railways in Thorngroove. Between 1974 and 1980 they were living at West Sommerton, Bulawyo. She stated, that, her husband was posted to various places of work around the country and outside Zimbabwe. The late Jubane James Jack fathered eight children from different mothers. She had one child with the deceased, Violet Jack (born in 1978).

The defendant's evidence was essentially, that, the properties in Gumtree were purchased by the late Jubane James Jack.

He raised the funds to acquire the property through a loan raised through his employer. The balance was secured by a mortgage bond registered over the property.

She said by virtue of their marriage, and as his legal wife, she was a beneficiary in the estate of her husband as a surviving spouse.

She firmly advised the court that she was always aware of the illicit relationship between her husband and the plaintiff.

Her version was that the plaintiff stole her husband and persuaded him to move over to the United Kingdom with her.

The deceased never went through the divorce proceedings because he was aware that they would have to share the property at Gumtree.

The defendant further stated, that, when her late husband indicated that he wished to divorce her she reminded him of their type of their marriage and that they would have to sell the immovable property and share the proceeds.

The defendant informed the court that the deceased never commenced the divorce proceedings until he met his death.

The defendant said she registered the Estate of the late Jubane James Jack under DRB773/06. A First and Final Liquidation and Distribution Account was filed with the Master of the High Court as follows:

“FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE HOSPITAL, UNITED KINGDOM ON THE 21ST FEBRUARY 2006

DRB 773/06
LIQUIDATION ACCOUNT

ASSETS $US

IMMOVABLE PROPERTY

1. Certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $50,000

2. Certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $25,000

MOVABLE PROPERTY

1. Household goods and effects $ 1,000

2. Five (5) herd of cattle $ 500

3. Grinding Mill $ 100

TOTAL ASSETS $76,600

ADMINISTRATION EXPENSES

12. ADVERTISING DEBTORS AND CREDITORS

(a) Chronicle: see attachment
(b) Government: see attachment

ADVERTISING THIS ACCOUNT

(a) Chronicle $10

(b) Government gazette $ 5

13. MASTER'S FEES

4% on $76,600 $3,064

Edict fees: see attached statement

TOTAL LIABILITIES $ 6,372-80

Balance to Distribution $70,227.20

$76,600-00

DISTRIBUTION ACCOUNT

Balance brought down to Distribution Account $70,227.20

Assets awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A:

TO CLEMENTINE JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56

2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78

3. Five (5) herd of cattle $ 55.56

4. Grinding mill $ 11.11

TO DANISO JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle $ 55.56
4. Grinding mill $ 11.11

TO CHIPO JACK

TO VUYISILE PATRICK JACK

TO VIOLATE JACK

TO THAMSANQA JACK

TO BRIAN JACK

TO GUGU JACK

TO DENNIS JACK

$70,227.00

Cash contribution to avoid sale of assets $ 6,372.00

$76,600.00

EXECUTORS CERTIFICATE

I, Bongani Ndlovu, hereby certify to the best of my knowledge and belief that the foregoing accounts are true and correct, that there are no further assets and that no liability exists in respect of income tax.

Dated at Bulawayo this day 28th day of January 2010.

FOR ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK

________________________________
EXECUTOR DATIVE”

What can be gleaned from a perusal of the Distribution Account is that the defendant took into account all of the deceased's children - including the plaintiff's children.

The totality of the defendant's evidence was that she was married to the late Jubane James Jack, such marriage being monogamous. She established, that, at the time the late Jubane James Jack died, she was the surviving spouse at law. She asserted that she was entitled to inherit from the deceased estate. She contended that in spite of their separation, the property was acquired by the parties during the marriage.

Her evidence was that her late husband secured a loan from the National Railways of Zimbabwe.

She stuck to her evidence, that, the plaintiff could not inherit the property in dispute because she was not the surviving spouse, and, in any event, she could not prove that she used her own funds to purchase the property.

From the defendant's testimony, her version remained uncontroverted.

It cannot be denied, that, if she was the lawful surviving spouse of the deceased, she would ordinarily be entitled to inherit the immovable property in dispute. The defendant went further to show, that, the property was shared amongst all the children of the deceased - including herself. It is my view, that, her attitude clearly shows that she did not seek to deprive all the lawful beneficiaries to the estate. She did not seek to allocate the property to herself to the exclusion of the children of the deceased.

The Legal Position

I have already set out the disputed and undisputed facts of the matter. I must now examine the law on the subject.

I have shown, that, the plaintiff failed to prove that she purchased the property in question. If she did contribute directly towards the purchase of the property, she failed, on a balance of probabilities, to show that she made any financial contributions. Nothing was placed before the court by way of evidence to show that the plaintiff purchased the property except her mere say so.

In the case of Sibanda v Sibanda and Another 2002 (1) ZLR 622 (H) SMITH J stated…, as follows:

“Since I have found that Josephine was not aware, in March 1994, that Joseph was a married man, that means that their 'marriage' is in fact a putative marriage.”

The judge held, in that case, that, the plaintiff was only entitled to what was a fair share in the matrimonial estate. She was not entitled to a half share.

The matter went on appeal to the Supreme Court, and, in Sibanda and Another v Sibanda 2005 (1) ZLR 97 (S), the Appeal Court upheld the decision of the High Court. The Supreme Court agreed with the lower court, that, where a man enters into a marriage with another woman whilst a previous monogamous marriage subsisted, the second marriage is a nullity.

The court, however acknowledged, that, it was the correct approach to take into consideration the contribution of the 'wife' in order to determine what amounts to an equitable distribution of matrimonial property.

See also Makovah v Makovah 1998 (2) ZLR 82 (S).

In casu, however, the court is not being called upon to determine what is an equitable distribution of matrimonial property. The court is also not called to consider the direct or financial contributions of the plaintiff, in the second 'marriage' which was undoubtedly a nullity.

The plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree, alleging that she purchased the said property using her own funds.

I have already concluded that the plaintiff's evidence falls short of proving that she purchased the property. If anything, the totality of the evidence shows, that, the late Jubane James Jack had a substantial part to play in the acquisition of the said property.

In my view, the said property remained matrimonial property up to the time of the decease's death.

The property therefore quite clearly fell for distribution in the estate of the deceased.

I am satisfied, that, on the evidence led, the third defendant managed to prove that she is the surviving spouse of the estate of the late Jubane James Jack, and, therefore, the lawful heir to his estate.

I must observe, that, where a party cohabits with a married man or woman with full knowledge of the existence of a prior marriage, he or she takes a calculated risk when they acquire property together. In the event of either party's death, the property automatically falls into the estate of the deceased. The beneficiaries of such estate have valid and lawful claims against the deceased estate. A surviving spouse who produces proof of marriage with the deceased will have a prima facie claim as a beneficiary in the estate.

In the result, I am not satisfied that the plaintiff succeeded in proving her case on a balance of probabilities.

It is accordingly ordered as follows:

The plaintiff's claim is hereby dismissed with costs.

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“The Constitution”) as read with Rule 21(2) of the Constitutional Court Rules SI 61 of 2016 (“the Rules”).

In the event that such leave is granted, the applicant intends to bring an application before the Court in terms of section 85 of the Constitution seeking an order to the effect, that, the definition of a “marriage” provided in section 2 of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) is constitutionally invalid because it deliberately discriminates against unregistered customary unions.

The applicant accepts, that, the first respondent (Minister of Justice, Legal and Parliamentary Affairs) introduced a Marriages Bill (HB 7, 2019) (“the Bill”) in Parliament and that according to its long title its objectives are, inter alia, to consolidate the law relating to marriages, to provide for the recognition and registration of customary law unions; to provide for the recognition of civil partnerships; and to amend several statutes, including the Matrimonial Causes Act.

At the hearing of this matter the Marriages Bill (HB 7, 2019) (the Bill) apparently had been transmitted to the Senate.

A copy of the Bill was not made available to the Court. It was, however, common cause that the Bill was still to be debated in the Senate and that the processes provided for in Part 6 of Chapter 6 as read with the Fifth Schedule of the Constitution were still to be undertaken.

In these circumstances, it is unknown, at this stage, what the final fate of the Marriages Bill (HB 7, 2019) (the Bill) will be.

It would therefore be most inappropriate for this Court to make any definitive pronouncement on a matter that is still under debate by Parliament.

As the matter is not ripe for consideration by this Court, it would not be in the interest of justice that leave be granted for the applicant to approach this Court directly.

FACTUAL BACKGROUND

The applicant is a universitas whose objectives, inter alia, include dealing with all matters affecting the professional interests of women lawyers and promoting the legal status and rights of women and children.

The application in respect of which direct access is sought is an application for a declaration of rights in terms of section 85 of the Constitution.

The applicant contends, that, the definition of what constitutes a marriage under, section 2 of the Matrimonial Causes Act, is unconstitutional in three respects:

(i) First, it excludes unregistered customary law unions. Therefore, the safeguards that ensure fairness and equity in the division of property amongst spouses upon divorce are not available to women married under this regime. This amounts to discrimination and violates section 56(1) of the Constitution as the needs of the spouses and their indirect contributions during the subsistence of the union are not taken into account.

(ii) Secondly, the failure to treat unregistered customary unions as valid also violates the rights of the spouses to language and culture (section 63 of the Constitution); and

(iii) Third, human dignity (section 51 of the Constitution).

The applicant accepts that the Marriages Bill (the Bill) has been transmitted to the Senate.

Although it engaged Parliament in order to include a clause recognising the validity of unregistered customary unions, it alleges, that, its proposals were not taken up. If given leave, it will seek a declaration that section 2 of the Matrimonial Causes Act is constitutionally invalid. It will also seek an order that pending the process of remedying the defect, section 2 of the Matrimonial Causes Act be read to include an unregistered customary law union.

SUBMISSIONS BEFORE THIS COURT

Asked during oral submissions whether the matter was ripe for adjudication by the Constitutional Court, and whether this was not a matter for Parliament, counsel for the applicant, whilst acknowledging that no-one can tell at this point in time what the fate of the Marriages Bill (the Bill) in the Senate will be, as well as thereafter, argued that the matter is ripe for determination by this Court.

She stated, that, there is nothing to stop this Court from determining whether section 2 of the Matrimonial Causes Act, in its current form, is compliant with the Constitution.

She accepted, however, that it was still possible for an amendment to be effected by Parliament in the current Bill.

In her submissions, counsel for the first and second respondents, whilst conceding that section 2 of the Matrimonial Causes Act excludes customary law unions in its definition of what constitutes a marriage, argued, that, the applicant is asking this Court to usurp Parliament's law-making functions.

She further argued, that, the applicant can continue to lobby Parliament to amend the Bill to include unregistered customary marriages.

Further, there is no guarantee that the President will assent to the Bill in its current form.

Counsel, therefore, submitted that the applicant has no prospects of success because what it is asking this Court to do is take over Parliament's legislative function.

THE LAW ON DIRECT ACCESS

Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the court. Rule 21(3) of the Constitutional Court Rules prescribes what must be contained in an application of this nature. It provides as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge, may, in addition to any other relevant consideration, take the following into account:

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”…,.

It follows from sub-rule (8) above, that, the three factors itemised therein are not the only factors that may be taken into account. The Rule is clear, that, in addition, there may be other relevant considerations that this Court may take into account in deciding whether or not direct access should be granted.

Rule 21(1) of the Constitutional Court Rules provides for matters that fall within the exclusive jurisdiction of the Constitutional Court.

In respect of those matters, no other court other than this Court has jurisdiction.

The Constitutional Court, however, shares concurrent jurisdiction with lower courts in respect of the remaining constitutional matters that may require determination. It is in respect of those matters that leave to approach the court directly is required.

An applicant seeking direct access must show that it is in the interests of justice that the matter be heard directly by this Court at first instance. This is because direct access is, by its very nature, an extraordinary remedy that is granted in very few cases.

As I CURRIE and J de WAAL in The Bill of Rights Handbook, 6ed…, point out, constitutional matters cannot be brought directly to the Constitutional Court as a matter of course. If this were to be allowed, the court could get bogged down in cases in which there may be disputes of fact on which evidence might be necessary or may be called upon to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest.

It is also not ordinarily in the interests of justice for any court, including this Court, to sit as a court of first instance without there being the possibility of appealing against the decision taken.

This Court, in various cases, has stressed that an applicant for direct access must satisfy two requirements:

(i) He must, firstly, show why it is in the interests of justice to have the matter determined directly by the Constitutional Court.

(ii) Secondly, he must show that the main application has prospects of success.

DOCTRINE OF AVOIDANCE, RIPENESS

It is not in dispute, that, as the law currently stands, unregistered customary law unions have very limited recognition at law. In terms of section 3 of the Customary Marriages Act [Chapter 5:07] they are recognised as valid only for the purposes of legitimacy of the children born thereto and for the distribution of property upon the death of a spouse.

The doctrine of constitutional avoidance dates back to the United States of America Supreme Court decision in Ashwander v Tennesse Valley Authority 297 US 288 (1936). In that decision, the court formulated the doctrine as consisting of seven rules, namely:

“1. The Court will not 'pass upon' the constitutionality of legislation in a friendly, non-adversary proceeding.

2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.

3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed.

5. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. Even if 'serious doubt[s]' concerning the validity of an act of Congress are raised, the court will first ascertain 'whether a construction of the statute is fairly possible by which the question may be avoided.'”

Rule 2, as formulated in the above cited case, constitutes what has come to be referred to as ripeness. The rule, in essence, postulates that there can be no anticipation of a constitutional issue in advance.

The principle of ripeness is therefore part of the doctrine of avoidance.

The basic rationale of the ripeness principle is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalised and its effect felt in a concrete way by the litigating parties: see Abbot Laborates v Gardner 387 US 136 (1967).

HOEXTER, Administrative Law in South Africa, 2nd ed 2012…, describes the doctrine in the following terms:

“The idea behind the requirement of ripeness is that the complainant should not go to court before the offending action or decision is final, or, at least, ripe for adjudication. It is the opposite of the doctrine of mootness, which prevents a court from deciding an issue when it is too late. The doctrine of ripeness holds that there is no point in wasting the courts time with half-formed decisions whose shape may yet change, or indeed decisions that have not yet been made.”

In Ferreira v Levin N.O. & Ors; Vryehoek v Powell N.O. & Others 1996 (1) SA 984 CC 199 KRIEGLER J pertinently remarked as follows:

“The essential flaw in the applicant's cases is one of timing, or, as the Americans and, occasionally, the Canadians call it 'ripeness'.

That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say, that, the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones.

Although, as Professor Sharpe points out, and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits - even cases for relief on constitutional grounds are not decided in the air.

And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons.”

Ripeness therefore entails consideration of the timing of a constitutional challenge.

Where a constitutional issue can be dealt with more conveniently at a later stage and the applicant will get no tangible advantage from an earlier ruling, the doctrine of ripeness requires the applicant to wait until the Constitutional Court can ground its decision in a concrete relief.

A court will not entertain a matter if it is premature in the sense that rights or interests have not been infringed or threatened.

The term may also be used where alternative remedies have not been exhausted or an issue can be resolved without recourse to the Constitution.

Whilst the concept is not precisely defined, the position appears settled, that, if it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course that should be taken: see MAX du PLESSIS et al, Constitutional Litigation…,.

That avoidance and ripeness are part of the law of this country, there can be no doubt: see, for example, the decision of this Court in Berry (Nee Ncube) & Anor v The Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC); Katsande & Anor v Infrastructure Development Bank of Zimbabwe CC09-17; Chawira & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 2017 (1) ZLR 117 (CC).

THE FACTS OF THIS CASE

It is common cause, that, one of the objectives of the Marriages Bill is to provide for the recognition and registration of customary law unions and to amend several statutes - including the Matrimonial Causes Act.

During the hearing of this matter, this Court was advised by counsel for the applicant that the Bill had since been passed by the National Assembly and had now been transmitted to the Senate.

That is all that is known about the Marriages Bill.

It is not known whether the National Assembly made any amendments to the Bill. It is not known what its fate in the Senate will be.

Even if the Bill is passed by both houses and presented to the President for his assent, he may refer it back to Parliament together with detailed reasons for his reservations: see section 131(5) of the Constitution. When that happens, the National Assembly must reconsider the Bill or pass it with or without amendments before it is once again referred to the President. If the President still has reservations, he must refer the Bill to the Constitutional Court for advice on its constitutionality. Further, in terms of Part 3 of the Fifth Schedule to the Constitution, neither the National Assembly nor the Senate may give a Bill its final reading unless a report of the Parliament Legal Committee has been presented to the House. An application can also be made to the Constitutional Court by a Vice-President or a Minister for a declaration that the provision, if enacted, would be consistent with the Constitution.

Regard being had to the above procedural requisites, it is unknown whether the Marriages Bill will be passed into law, and, if so, whether this will be with or without amendments.

Counsel for the applicant did concede during the hearing that an amendment to the Bill is still possible to include customary law unions in the definition of marriage.

MATTER NOT RIPE FOR ADJUDICATION

Clearly, therefore, the matter is not ripe for adjudication by this Court.

This is a matter that currently is the subject of consideration by Parliament, and, perhaps, thereafter, by the President. Indeed, in Doctors for Life International v The Speaker of the National Assembly CCT 12/05 NCOBO J, whilst dealing with the competence of the Constitutional Court to interfere with the autonomy of Parliament to regulate its internal proceedings, made the following pertinent remarks:

“(68) Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question. Courts have traditionally resisted intrusions into the internal procedures of other branches of Government. They have done this out of comity, and, in particular, out of respect for the principle of separation or powers. But, at the same time, they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, courts have developed a 'settled practice' or general rule of jurisdiction that governs judicial intervention in the legislative process.

(69) The basic position appears to be, that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view, that, the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judiciary developed rule or 'settled practice'. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But, intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.”

DISPOSITION

The conclusion is inescapable, that, the issue raised in this application is not ready for adjudication by this Court. Until the fate of the Marriages Bill is known, it would not only be inappropriate and unwise, but also premature, for this Court to make a determination on the constitutionality of the definition of marriage in section 2 of the Matrimonial Causes Act.

I find, therefore, that, it is not in the interest of justice that leave for direct access be granted to the applicant.

On the question of costs, I find no reason to depart from the normal practice of this Court not to award costs in constitutional applications.

In light of this conclusion, it becomes unnecessary to determine whether or not the applicant has an alternative remedy at its disposal.

In the result, the following order is made:

“The application is dismissed with no order as to costs.”

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

The matter came before me on the unopposed roll on 1 September 2016. I dismissed it on the basis that:

(a) There is no cause of action, therefore, the relief sought is incompetent.

(b) The papers are defective in that they do not comply with Order 32 of the Rules of this court.

After having been subjected to a barrage of letters by the applicant, the contents of which are self explanatory, and which form part of the record of proceedings, this is a formal setting out of the reasons for the dismissal of the application.

The court application filed of record, on 8 July 2016, made reference to five other applications filed before this court: HC11009-12, HC9428-14, HC2826-16, HC1511-16 and HC2622-16.

The draft order…, is a prayer for an order that the applicant be granted his wish to be allowed to pay lobola at his own convenience, on a date to pay that he will request from the inlaws - only if the respondent is a virgin.

The court was asked, further, to order the respondent to stop her part in the “beaming”.

The court was unable to determine, from the founding affidavit, what the cause of action was.

The court was unable to accede to an order that the respondent accept the applicant as a prospective husband; an order that the parents allow the applicant to pay lobola for her hand in marriage at his convenience; an order that she demonstrates that she is still a virgin; or an order that the respondent stops her part of the 'beaming'.

A cause of action is defined as “the facts that entitle a person to sue:” see Oxford Dictionary of Law, 8th ed Southern Law…,.

The cause of action may be a wrongful act, such as trespass, or the harm resulting from a wrongful act, as in negligence.

A reading of the founding affidavit suggests, that, the applicant's cause of action purports to be founded in delict.

A 'delict' is a civil wrong: see Principles of Delict, JONATHAN BURCHELL…,.

In a delictual claim, the plaintiff normally seeks damages as compensation from the defendant for infringement of his or her rights.

There is nothing in the applicant's founding affidavit which shows what civil wrong the respondent committed.

There is nothing in the founding affidavit to justify the relief sought by the applicant, in delict or in any other recognisable cause of action.

The court was not furnished with sufficient information or averments to understand what 'beaming' is.

To order the respondent to stop her part in the 'beaming' without sufficient foundation as to what this 'wrong' is would be incompetent.

It would be incompetent to order 'that the respondent' furnish the applicant with evidence of her virginity or that she agree to be 'lobolaed' by him.

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