Citation Jeke v Zembe (HC 11663 of 2017; HH 237 of 2018) [2018] ZWHHC 237 (5 May 2018) Copy Media Neutral Citation [2018] ZWHHC 237 Copy Court Harare High Court Case number HC 11663 of 2017 ; HH 237 of 2018 Judges Chirawu-Mugomba J Judgment date 5 May 2018 Language English Type Judgment Other documents Download PDF (208.8 KB)
Navigate documentHIGH COURT OF ZIMBABWE
HARARE, 5 May 2018
Unopposed Application-Family Court
M.B Lunga, for the applicant
CHIRAWU-MUGOMBA J: Lawyers must exercise due diligence when representing clients and this includes ensuring that they file proper pleadings and that they seek appropriate relief. On the 15 of December 2017, the plaintiff issued summons against the defendant claiming an order for the dissolution of a customary law union; an order for sharing of property in terms of the declaration; an order for eviction and cost (sic) of suit. The plaintiff prayed for the following:
The declaration averred that the plaintiff and the defendant were married in terms of an unregistered customary law union which had soured and that there were no prospects for restoration and cited the reasons which include infidelity; violence; loss of love and affection; separation and that married life had become untenable. The plaintiff averred that it would be in the best interest (sic) for the minor children if custody is awarded to the plaintiff with the defendant being granted reasonable access and that the defendant also pays maintenance in the sum of US$300 per month per child until they reach 18 or become self-supporting which ever happens first. In addition, the defendant should also pay school fees. The plaintiff listed movable and immovable property that was acquired by the parties during the subsistence of the union and whilst on separation. She sought an order sharing the property on the basis of equity. In paragraph (s) 13 and 14 of the declaration, the plaintiff made a case for the application of general law as opposed to customary law and further proceeded to make a claim based on unjust enrichment. The Form 30A summons and declaration were served on the defendant on the 16 of December 2017. On the 13 of April 2018, the parties filed a consent paper that regulates their relationship and other ancillary relief. On the 24 of April 2018 the plaintiff filed an affidavit of evidence and on the same date the defendant filed an affidavit of waiver. The plaintiff proceeded to set the matter down on the unopposed roll for the 3 rd of May 2018. At the hearing, the plaintiff’s legal practitioner handed in from the bar an amended draft order seeking a dissolution of the unregistered customary law union; custody of the minor children and that the consent paper signed by both parties regulates all proprietary rights, access rights, maintenance and other ancillary relief. The procedure and the pleadings filed would have been correct had this been for a marriage registered in terms of either the Marriage Act [Chapter 5:11] or the Customary Marriages Act [Chapter 5:07].
The plaintiff’s legal practitioners filed Form 30A summons as specified in order 35 (Matrimonial Causes) Rule 269A. The procedure set out in that order is specific to registered marriages and in this regard, it was not proper to use Form 30A summons. Section 3(1) (a) of the Customary Marriages Act (supra) is clear that a marriage is not valid unless solemnized. The act gives limited recognition to an unregistered customary law marriage by recognising it for purposes of customary law and custom relating to the status, guardianship, custody and rights of succession of children of such marriage. 1
An unregistered customary law union (sometimes confusingly referred to as a marriage) is also recognised for the following purposes:
There is a plethora of decisions on the sharing of property in unregistered customary
law unions that ought to guide legal practitioners who wish to file such claims before the courts – see Chapeyama v Matende and Anor 3 ; Chivise v Dimbwi 4 Feremba v Matika 5 ; Mandava v Chasweka 6 ; Matibiri v Kumire 7 ; Mtuda v Ndudzo 8 ; Jengwa v Jengwa 9 ; Marange v Chiroodza 10 ; Mabuto v Bhila 11 and Ntini v Masuku. 12
The Matrimonial Causes Act [Chapter 5:13] does not apply to an unregistered customary law union due to the definition in s 2 of an action for divorce, judicial separation or nullity of marriage; appropriate court and marriage. Although the High Court has inherent jurisdiction, it was not appropriate for the plaintiff to bring an action seeking an order for dissolution of an unregistered customary law union as if it is a marriage. As aptly stated by Makarau JP (as she then was in Mandava v Chasweka 13 ,
“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. Trial magistrates who deal with the estates of parties to an unregistered customary union tend to fall into three errors. Firstly, they tend to proceed to deal with unregistered unions as if they are registered. Secondly, they fail to avert to the choice of law provisions of our law and finally they tend to forget their monetary jurisdictional limit when distributing joint estates at general law”.
Although this was in relation to an appeal from the Magistrates Court decision, it is
pertinent to note that the legal principles from that decision are that:
(1) a customary law union is not a marriage
(2) parties to such a union cannot be divorced by the courts
(3) the Matrimonial Causes Act cannot be used to distribute their estate and
(4) a choice of law process has to be pleaded to establish a cause of action.
The plaintiff sought to plead a cause of action much later in the declaration (in paragraphs 13 and 14) and yet this was supposed to be the main hurdle to overcome first- which system of law applies-customary or general law given the fact that customary law has no remedy and that the courts have applied judicial activism to deal with the lacuna especially to assist female litigants in such situations. This can only be done through invoking a choice of law process. From the decisions a pattern emerges on how to plead properly as follows:
Had the plaintiff’s legal practitioners used ordinary summons, pleaded their client’s case as outlined above and complied with all other procedural issues, the relief sought would have been granted. Given the confusion surrounding this aspect of family law, I join the clarion call that has been made in other decisions for law reform on the marriage framework in Zimbabwe. Organizations such as WLSA 19 and ZWLA 20 have worked tirelessly to show the many problems caused by the non-recognition of unregistered customary law unions and have proffered suggestions on law reform. The Law Development Commission also produced an inquiry paper on the same issue 21 . In Mashingaidze v Mugomba 22 (supra) Gwaunza J (as she was then) on p 21 of the cyclostyled judgement stated as follows:
“However, while I support the view that a proven unregistered customary union should be treated like any other marriage when it comes to dissolution and the division of assets jointly acquired by the parties during the subsistence, such view is currently not supported by the law. All that can be said is that time has surely come to actively consider reviewing the situation especially in the light of the increasing and not inconsiderable recognition being extended to unregistered customary law unions.”
Without law reform, litigants will continue to be short changed by legal practitioners
who approach such cases as if they are registered marriages.
The plaintiff’s summons and declaration are flawed and in the result, it is ordered as follows:
T. Kadhau and Associates, plaintiff’s legal practitioners