PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY LAW

(a) Marriage
Customary marriages
• Customary marriage is a fundamental building block in traditional African
family law. It is more of a social process than legal one.
• It is an involvement of two kinship groups or family at the formation and
dissolution of the marriage.
• Family relationship over individual goals.
• The failure to recognise customary law led to hardships within the African
Family setting: (1) Spouses married in terms of customary law were not
considered to be husband and wife. Therefore this eliminated the duty of
support. Their children were not considered to be legitimate.
• If the man married another woman by civil rites, the civil marriage
extinguished the customary marriage, leading to the discarding of the first
wife and her children.
• Zimbabwe’s law currently recognized two kinds of unions –civil marriage and
registered customary marriage. The third kind of union is unregistered
customary marriage, which is not legally recognized. It is, however, one of the
most common unions and one that has often resulted in more confusion than
freedom for those who have opted for it.
• The civil marriage, which is covered under the Marriage Act’s chapter 5:11, is
monogamous and are recognized as the most ideal form of marriage because
it offers almost equal legal protection and rights to spouses in the union. The
registered customary union, which is covered under the Customary Marriages
Act chapter 5:07, recognizes the union as being guided by cultural rules.
Unregistered customary marriages
• The strength of these two marriages lies in the fact that they are both
registered and recorded as legal unions – meaning spouses in these
unions enjoy the full protection of the law whenever the need arises.
• While the third type of union – unregistered customary marriage – is not
legally binding, it has turned out to be the most common one in Zimbabwe.
 • This union involves a man and woman living together as man and wife
after fulfilling cultural marriage ceremonies like lobola payment, but without
signing the legal marriage register as required by the laws of Zimbabwe.
• This union is ‘popular’ for a number of reasons. ……..While many people
do not know that they need to register their unions, those who do know
may not realise the benefits of having their union registered.
• For others, it is logistically difficult to have their unions registered as the
process can only be done by recognized marriage officers.
• Many couples in rural areas see no reason to travel to the nearest city or
church to find a recognized marriage officer (not every ordained pastor is a
legal marriage officer) to have their union legalized if their families already
recognize the union.
• According to the law, if the marriage were not registered then divorce is not
possible. Secondly, while in registered unions property is viewed as having
been jointly acquired unless a prenuptial agreement was signed, in
unregistered unions it is up to each individual to prove that the property one is
claiming is his or hers when it comes to separation.
• But inheritance is also more complicated in an unregistered customary union
since a widow needs the legal confirmation of two relatives of her deceased
husband before she can handle his estate. This means that even beyond
death, the deceased husband still has a certain control over what his widow
can or cannot do with the property procured during their marriage.

Customary Marriages Act 5:07

Zimbabwe is one of very few countries in Eastern and Southern Africa which
requires the registration of customary law marriages before they can be fully
recognised by the law as valid marriages. The provision requiring such registration
was enacted by the colonial government and inherited at independence. To date it
has remained intact except that by piecemeal legislative interventions and judicial
interpretations, recognition of unregistered customary marriages has been extended
to more and more areas of the law.
Definition of a Customary marriage in accordance with the Act
Section 2 customary marriage means a marriage between Africans. This
marriage is very broad for it applies to Africans as opposed to Zimbabweans.

• Section 3(1) states that, Subject to this section, no marriage contracted

according to customary law, including the case where a man takes to
wife the widows of a deceased relative, ( recognises kugara nhaka
custom ) shall be regarded as a valid marriage unless;
(a) Such marriage is solemnised in terms of this Act; or
(b) Such marriage was registered under the Native Marriages Act
[Chapter 79 of 1939] before the 1st January, 1951; or
(c) Such marriage was contracted before the 1st February, 1918 or
(d) Being a marriage contracted outside Zimbabwe, such marriage is
recognised as a valid marriage in the country in which it was
contracted.
Solemnization of the marriage
• Must be solemnised by a customary marriage officer of the district in which
the woman or her guardian resides. A marriage officer can be amont other
a chief, giving this role to traditional leader uphold the tradition of the
importance of the tradition of chieftaincy.
• People who are supposed to be present: Guardian of the woman or a
deputy appointed by such guardian:-Raises the concerns of the
capacity of a woman to stand on her own. However indirectly
acknowledges the payment of lobola which is normally paid to the
guardian of a woman and he cannot consent to the registration of the
marriage unless his lobola is paid up or at least there is an undertaking for
that payment).
• However the guardian must not unreasonably withhold his consent.
Unreasonableness can be interpreted in each context and with the
discretion of the Magistrate.
 Solemnisation by the magistrate.
• Witness shall be a chief, headman or village-head of the guardian of the
woman.
• The Magistrate may fix a marriage consideration. A marriage consideration
is defined in section 2 of this Act as a ‘ a consideration given or to be
given by any person in respect of the marriage of an African woman,
whether such marriage is contracted according to customary law or
solemnized in terms of the Marriage Act or this Act. Payment of lobola
there!!!

• Section 11 of this Act condemns the pledging of girls or woman to a man.

Any agreement in which a person, whether for consideration or otherwise
pledges or promises a girl or woman to a man shall be of no effect.

Section 15 African women must not marry against their consent…it is a crime.

Section 16 of the …..Dissolution by the court.

A registered customary marriage can only be dissolved by a competent court.
• In section 16 of Customary Law and local courts, Chapter 7:05 it grants
jurisdiction to community courts (presided over by chiefs) to adjudicate in
disputes arising out of unregistered customary law marriages. At the same
time, because this is not a marriage, according to section 3(1) of the
Customary Marriages Act, Chapter 5:07, Magistrates Courts and indeed the
High Court have no jurisdiction to dissolve this marriage. So what happens
when a litigant approaches the community court seeking divorce and is not
satisfied with the decision of the Community Court? Can he/she appeal to the
Magistrates’ Court? Or is there no right of appeal from the Community Court?

• In the 2003 case of Katedza v Chunga & Another 2003 (1) ZLR at page 470,
wherein the mother of children born in the unregistered customary law
marriage was able to change the children’s surname from that of the father to
her own, and was allowed by the High Court to acquire new birth certificates
for the children without the father’s consent. The judge ruled that whilst
 section 3(5) of Customary Marriages Act, Chapter 5:07 says that the children
born out of this marriage are legitimate, this is for customary law purposes
only, not for general law purposes. Consequently, the High Court ruled that
children born in an unregistered customary law marriage are illegitimate for
general law purposes and all rights over the child are with the mother

Discussion Questions
1. Define a customary marriage in terms of the Customary Marriage Act and
2. Discuss whether the definition given denotes a true customary marriage as it
is being practised.
3. Name two types of Marriage officers as provided by the Act.
4. What are the requirements for the solemnisation of a customary marriage?
5. List down offences that may be committed in terms of the Act?
6. How is a customary marriage dissolved in terms of the Act?
7. To what extent Does the Customary marriage Act preserve the Zimbabwean
marriage customs?
8. With Reference to Katewe V Muchabaiwa and Gwatidzo V Masukusa 2000
(2) ZLR 410 (HC) discuss whether the payment of lobola is a requirement for
customary marriage.
GWATIDZO v MASUKUSA 2000 (2) ZLR 410 (HC)

Summary
The defendant was married under customary law to one G. The marriage was not
registered. The parents of the defendant had accepted roora from G. A child was
born of this union. The plaintiff subsequently married G, also under customary law.
At the time she married G the plaintiff was aware that G was already married to the
defendant in a customary union. The plaintiff later had her marriage solemnised
under the Marriage Act. This was E done before a magistrate and not before a
minister of religion. The plaintiff did not require G to terminate the customary union
before contracting the civil marriage with him. G and the defendant continued to
have sexual relations and another child was born. The plaintiff claimed damages for
adultery from the defendant. The defence was raised that as the defendant was
married to G in a customary union, she could not be held liable to pay adultery
damages to the plaintiff. F
Held, that there was a serious conflict between customary and general law. This
conflict continues to affect the law because of the legislature's reluctance to change
the law so as to secure equality for all people irrespective of the nature of the
marriage contracted by them. Additionally, the female spouse's rights have been
looked at exclusively from the perspective of the man's rights and not independently.
Held, further, that under customary law a woman adulterer cannot be sued for
damages whereas under general law a spouse in a civil marriage may sue the
female adulterer for adultery damages. G
Held, further, that the law recognises both customary and civil marriages. A
customary union which is unregistered is given considerable recognition for many
legal purposes.
Held, further, that the Constitution provides for the application of customary law. The
defendant had a constitutional right to choose which system of law would govern her
marital relationship with G and she had chosen the customary law system. This was
the system of law that therefore applied to her relationship with G. She had acquired
rights as a result of the customary union. The plaintiff was aware of G's customary
law marriage to the defendant and did not require A him to terminate it. She was
attempting to force the application of general law principles upon a defendant who
had not chosen that system of law. The rights acquired by the plaintiff when she
entered into the civil marriage with G should not be construed as automatically
eliminating the defendant's rights under customary law. There was no justification for
subordinating the defendant's rights to those of the plaintiff.
Held, further, that the position would conceivably have been different had the plaintiff
and G entered into a B Christian marriage by having their civil marriage solemnised
by a minister of religion, as this may have amounted to a profanation of the Christian
marriage.
Held, further, that adultery today is not regarded as seriously as it used to be,
particularly by persons married under polygamous unions. People's views on extra-
marital sex have changed and the cultural views of an African man or woman are
determined by his or her culture and the prevalence of polygamous marriages.
Held, further, that one of the bases for awarding damages for adultery is loss of
consortium. There had been no C such loss in this case.
Held, therefore, that the claim should be dismissed.
Judgment
Chinhengo J: At the commencement of the trial in this matter, it was agreed that the
defendant should give evidence first. This was so because the trial looked like it
would be concerned only with establishing whether the defendant, who was being
sued for damages for adultery by the plaintiff, had entered into an unregistered
customary marriage with the plaintiff's husband,
Douglas Gwatidzo (hereinafter referred to as "Gwatidzo") before the plaintiff's
marriage to Gwatidzo. It was also A because her defence to the plaintiff's claim was
that her customary marriage excused her from liability for adultery damages. After
the defendant had given evidence and had been cross-examined on it, it became
apparent, and the parties agreed, that there were no disputes of fact and the matter
could proceed as a stated case for the court's determination. Indeed most of the
facts were common cause. I therefore agreed that the B matter be brought up as a
stated case. The case for the court's determination was framed in the following
terms:
" 1. That it is assumed that the defendant and Douglas Gwatidzo (plaintiff's
husband) were customarily married and such marriage was not solemnised in terms
of the Customary Marriages Act [Chapter 5:07] or the African Marriages Act prior to
the solemnization of the marriage between the plaintiff and Douglas Gwatidzo in
terms of the Marriage Act [Chapter 5:11]. C
2. That the plaintiff and Douglas Gwatidzo contracted a valid marriage
under the Marriage Act on 6 September 1996 at Harare and that marriage still
subsists.
3. That the defendant had sexual intercourse with Douglas Gwatidzo after
the solemnization of his marriage to the plaintiff resulting in the birth of the
defendant's second child (with Douglas Gwatidzo).
The Stated Case to be decided is: D
(a) Whether the assumed prior existing unregistered customary union
between the defendant and the plaintiff's husband excuses the plaintiff from liability
for adultery damages in this suit.
 (b) Whether the customary union contracted in 1995 as alleged by the
defendant is a valid marriage so as to preclude Douglas Gwatidzo from entering into
a valid marriage in terms of the Marriage Act as he did in September 1996 with the
plaintiff. E
(c) Whether the sexual intercourse between the plaintiff's husband and the
defendant (admitted by the defendant) amounts to adultery. If it is, what is the
quantum of damages."
The stated case framed in these terms would appear to pose an academic question
because of the use of the word "assumed" in paras (1) and (a) above. Its use was
unfortunate and can be attributed to the reluctance of legal practitioners to concede
facts which are supposed to be common for fear that the client may accuse them F
of misrepresenting his or her case. The facts in this case are quite clear from a
reading of the pleadings, the evidence of the defendant and from the summary as
agreed between the parties. They can on this basis be amplified upon without
prejudice to the case as stated as follows.
The defendant and Gwatidzo contracted an unregistered customary union in 1995.
Gwatidzo paid roora to the G defendant's parents and Gwatidzo and the defendant
became husband and wife at customary law. They did not register their customary
law marriage in terms of any of the marriage statutes. I will henceforth refer to their
unregistered customary law marriage as a "customary union". A child was born in
March 1996 to this customary union. A customary union permits the husband to
marry, also at customary law and enter into a customary union or unions with
another or more women. It is potentially polygamous. Gwatidzo A apparently did
that. He fell in love with the plaintiff and also entered into a customary union with her
(see para 2 of plaintiff's replication). The plaintiff who was aware of the defendant's
relationship with Gwatidzo had her customary union "upgraded" to a civil marriage by
solemnization in terms of the Marriage Act. The defendant became aware of
Gwatidzo's marriage to the plaintiff. This however did not deter her from continued
sexual B intimacy with him. It must be said too that Gwatidzo was also not deterred
from the same conduct. A second child was born in about October of 1998 of
Gwatidzo and the defendant. This was incontrovertible evidence of sexual intimacy
between Gwatidzo and the defendant. The plaintiff issued summons in August 1999
and claimed the sum of $15 000 as damages for adultery together with interest at the
rate of 25% per annum from the date of C service of the summons to the date of
payment. The plaintiff amended its claim by increasing the quantum to $35 000. This
amendment was made orally by the plaintiff's legal practitioner during the course of
his closing address. He argued that the amendment was not prejudicial to the
defendant as in any case the amount to be awarded was in the discretion of the
court. Mrs Makarau for the defendant did not oppose this last minute D
amendment.
We come up in this case against a serious conflict of laws. The common law scholar
or judge would have no difficulty with the facts in this case or the application of the
law to them. The conclusion which he would quickly come to is that the defendant
committed adultery with the plaintiff's husband and as a result she is liable in E
damages to the plaintiff. The civil law marriage between the plaintiff and Gwatidzo
established a monogamous relationship which excludes another woman in
Gwatidzo's life. The common law judge would not be concerned with the customary
union between the defendant and Gwatidzo except perhaps in relation to the
quantum of damages. F
I am concerned with the customary union because it has been raised as a defence in
this case. It exemplifies a conflict between customary law and the general law. It
would have a bearing on the quantum of damages if I were to find for the plaintiff. I
will amplify upon the parties' respective positions in order to illustrate more
graphically the question in dispute.
We have here a woman, the defendant, who is married to Gwatidzo in a customary
union. The union is obviously G unregistered. Her parents have accepted roora
from Gwatidzo. They regard him as their son-in-law. They regard his relationship to
their daughter as a marriage. Conjugal relations between the defendant and
Gwatidzo are recognised as legitimate. They have a child between them. Despite his
civil marriage to the plaintiff Gwatidzo returns to the defendant, a woman in respect
of whom he has paid roora and with whom he has a child and asks for or perhaps
demands sexual intimacy with her. The woman may be under A some social
pressure to accede to Gwatidzo's demands. After all she has a customary union with
him and Gwatidzo has not formally terminated that union. Her predicament arises
from many causes, perhaps from family pressures, roora having been paid or from
her own love for him. In her evidence she said that she still regarded him as her
husband. She is perhaps tribally minded, as shown by her customary union, and
morally B she does not feel inhibited by her husband's marriage to the plaintiff. Is
this court to adopt the attitude of the court in Nkambula v Linda 1951 (1) SA 377 (A)
where at 382-383A, the court rejected such a morality in preference to its own? It
stated as follows:
"The Acting President said that as Lena is shown by her tribal marriage to be
a tribally-minded individual, it cannot matter to her C morally under what conditions
her husband contracted the second marriage. But it surely must matter to her when
the second marriage is contracted under conditions that are incompatible with the
continuance of his conjugal relations with her'; and if indeed Lena's moral views in
respect of a civil marriage are sufficiently adaptable, those of this court are not, and
we should in a matter of this nature base our order on our standard, not on hers." D
The court was on a civilising mission! To me, such a supercilious attitude should not
be adopted in Zimbabwe where many couples have not registered their customary
unions and the law, by not outlawing customary marriages whether registered or not,
shows no contempt for marriages at customary law. To adopt such an attitude would
be patronizing on a large number of people in this country and would constitute the
"intolerable affectation of superior virtue ... inherited from the colonial past"
mentioned by the Chief Justice in Zimnat E Insurance Co Ltd v Chawanda 1990 (2)
ZLR 143 (S) at 153A. I think our courts must recognise customary law for what it is -
a law which our people believe in and accept as binding on them (Mutaisi v Muzondo
1999 (2) ZLR 435 (H) at 437).
In this case, we have on the other hand the plaintiff who, with knowledge of the
defendant's customary union, F initially entered into a similar union with Gwatidzo
and "upgrades" it to a civil marriage. She is entitled under the law to do so, in fact
encouraged as the law in this country looks more favourably on monogamous
relationships. See generally Chikosi v Chikosi 1975 (1) RLR 140 (G), Chamboko v
Chamboko 1998 (2) ZLR 516 (H) and Mkwiramiti v Fidelity Life Assurance of
Zimbabwe (Pvt) Ltd & Anor 1998 (2) ZLR 471 (S). She seeks to protect G her
position by contracting a civil marriage which she knows precludes her husband from
a sexual relationship with another woman. Is she not to be afforded the full protection
resulting from her civil marriage? And when she sues a woman who has had a
sexual relationship with her husband, why should she not recover the damages she
claims?
We have in this tragi-comedy Gwatidzo in the middle. He is not the target of either
woman. He is watching the A scene from a distance and perhaps rubbing his hands
gleefully as the drama unfolds and the women who both love him battle it out in the
courts. The battle is over him. None dares call him the culprit. None has the pride to
tell him off and terminate her relationship with him. She must fight the other woman
to the bitter end until she can have Gwatidzo exclusively for herself, in the case of
the plaintiff, or until she can lawfully "share" him with the B other woman, in the
case of the defendant. Is there not sufficient pride on the part of either woman to
terminate her relationship with this man? Perhaps there is, but social realities may
impede such action.
The law of adultery under customary law was that a woman adulterer would not be
sued for adultery damages. C Only the male partner would, with the woman partner
being exposed at most to family sanctions which were not in the public domain.
Under customary law only a husband could sue for damages for adultery - see TW
Bennett Application of Customary Law in Southern African at p 158 and Gelfand The
Genuine Shona at p 87 where it is stated: D
"The woman would not be held responsible. Instead, the blame and fine are
the affair of the man who committed adultery. Even if he has been enticed by her, he
is declared the guilty one."
See also Takadini v Maimba 1996 (2) ZLR 737 (S).
Going by the fact that the defendant was tribally minded as evidenced by the
customary union, for which I am not prepared to condemn her, it may be said that
the defendant in line with the customary law of adultery could not E ever have
contemplated being sued for adultery damages by Gwatidzo's other wife, for to her
the plaintiff could only have been Gwatidzo's other wife.
Under the general law, a spouse of a civil law marriage may sue to recover damages
for adultery from a third party. Thus, the female spouse may sue the female partner
to the adultery and can recover damages. The F position under customary law,
which the defendant espouses in her defence, and the general law on which the
plaintiff bases her action, are diametrically opposed. This conflict between customary
law and the general law has resulted in the defence which the defendant has raised
and which for those of us enamoured of the general G law would regard as
spurious. To resolve the question before me, I have to examine the arguments
advanced on behalf of the parties.
Mr Chikumbirike's argument was fairly simple and straightforward. It was this.
Section 3 of the Customary Marriages Act does not recognise the defendant's
customary union as a valid marriage. The law does not prevent the male party to a
customary union from contracting a civil marriage with another woman. Gwatidzo
had the competence to contract the civil marriage with the plaintiff. Section 12 of A
the Customary Marriages Act enabled him to convert his customary union with the
plaintiff to a civil marriage. He did so and the validity of this marriage is not disputed.
Once he contracted a civil marriage with the plaintiff any sexual relationship between
him and another woman is adultery and that other woman can be sued for damages
under the general law. To him the law is clear - adultery has been committed and the
defendant is liable in B damages to the plaintiff.
Mr Chikumbirike's argument finds support in statute law and the decided cases in
this country and in other jurisdictions. Section 3 of the Customary Marriages Act
provides in subs (1) that:
"Subject to this section, no marriage contracted according to customary law,
including the case where a man takes to wife the C widow or widows of a deceased
relative, shall be regarded as a valid marriage unless -
(a) such marriage is solemnised in terms of this Act; or
(b) ...
(c) ...
(d) ..." D
Mr Chikumbirike submitted that this provision means that a customary union is not a
valid marriage. The effect of a marriage under the civil law was clearly articulated by
the Chief Justice in Makwiramiti supra. In that case a man married in terms of the
Marriage Act purported to marry another woman in terms of the Customary
Marriages Act and registered that marriage. The issue was whether the second
marriage existed or was valid. The Chief Justice stated the following at 473B-F: E
"The learned judge was undoubtedly correct in his view that the marriage of
the deceased and Rosemary was bigamous and, consequently, illegal and of no
validity. This was because at the time it was contracted the deceased was married to
Rosaria under a monogamous or civil type marriage entered into under the Marriage
Act. By embracing a monogamous regime, the deceased was deemed by law to
have waived his customary privileges in respect of polygamy and, for as long as he
remained married, to have submitted to the general law of the land. He was
precluded from marrying another person, not only under the F general law, but
under customary law as well. He suffered from absolute incapacity to marry. See R v
Moyo 1946 SR 12; R v Francis 1947 SR 95; R v Tarasanwa 1948 SR 6; Mudzingwa
v Mudzingwa 1989 (2) ZLR 182 (S); South African Criminal Law and Procedure 3 ed
vol III at 263 in fine - 264; Goldin and Gelfand African Law and Custom in Rhodesia
at 270; Ncube Family Law in Zimbabwe at 130. Indeed, so jealously does the law
guard against the profanation of the Christian ceremony of marriage that it G
criminally punishes bigamy and delictually punishes adultery. Moreover, it renders
null and void a promise of marriage made by a married person even where that
promise is conditional upon divorce or the death of the promisor's spouse. Such a
promise, being contra bonos mores, debars an action for breach of contract. See
Friedman v Harris 1928 CPD 43 at 45 in fine - 46; Claassen v van der Walt 1969 (3)
SA 68 (T) at 70B-C."
The situation in this case was that the man concerned contracted a civil marriage
before he contracted the A customary marriage. The court correctly declared the
subsequent customary marriage invalid. The opposite situation arose in Chamboko's
case supra, where a man contracted a customary marriage and registered it in terms
of the Customary Marriages Act. He contracted a civil marriage with another woman
later without first dissolving the customary marriage. This court declared that the
subsequent marriage was invalid. The point is B made in both cases that these two
types of marriages cannot co-exist between two women and one man. Chamboko's
case, though accepting that the law jealously guards against the profanation of the
civil marriage, did not recognise the civil marriage between the man and the second
woman as automatically supplanting a duly registered customary marriage between
the same man and the first woman. It placed the two marriage on a par C to the
extent that one excludes the other if different women are involved with the one man.
In South Africa, it was stated in Nkambula v Linda supra at 384B-C that:
"To my mind, a partner to a Native Customary Union who contracts a civil
marriage with a third person thereby creates a situation so incompatible with the
continuance of the conjugal relationship as to make the act tantamount to desertion
and to free the other D partner from the obligation of continuing the habitation."
This is the position which Mr Chikumbirike urged the court to accept. But should it?
In Chamboko's case supra, I was much persuaded by the position as stated in the
above-quoted passage that at 522B-E and 524D, I was prepared to accept that a
wife in a customary union can be "discarded" where the man marries another woman
E under the Marriage Act. I think I did not fully appreciate the import of the
authorities I quoted at 523D-E and 524B which suggest that under Zimbabwean law,
bigamy may be committed "in the case of polygamous marriages even perhaps
unregistered, when the first or second marriage is a valid Christian or civil marriage".
Mrs Makarau lamented the fact that whilst the facts in this case bring into sharp
focus the lack of harmony in the F marriage laws of this country, they bring to the
fore the unfortunate consequences of the application of two parallel laws within one
legal system and for the same group of people. She lamented the fact that court
decisions in customary law have been inconsistent and have driven the development
of customary law into a cul-de-sac from which it can only emerge by further
pronouncements which seek to infuse into the subject some G consistency. I tend
to agree with her in this regard. She formulated the question arising in this case as
being whether or not the three types of marriage systems in Zimbabwe can co-exist -
customary unions, customary marriages (registered) and civil marriages - each with
its own peculiar rights, obligations and consequences for the parties to it. She
submitted that each of these marriages affords to the parties to that marital union
conjugal privileges and A legitimacy. She argued that s 3 of the Customary
Marriages Act poses a difficult question, whether or not it invalidates customary
unions for purposes of customary law. This is not a difficult question at all. The
meaning of the word "valid" in s 3(1) of the Customary Marriages Act is limited to the
context of the general law but under customary law a marriage contracted in
accordance with that law is valid, whether solemnised or not - B Carmichael v Moyo
1994 (2) ZLR 176 (S) at 181B-C; Chapeyama v Matende 1999 (1) ZLR 534 (H) at
545E-546A. I agree with this conclusion because it must be presumed that the
Legislature did not intend to alter the existing customary law as to the validity of
customary unions more than was necessary. It is improbable that the legislature
would have departed from customary law recognition of customary unions without
expressing C itself with irresistible clearness - see Maxwell The Interpretation of
Statutes 12 ed at p 116.
Mrs Makarau went further to make what I think is an important point - that a
customary union confers certain rights and obligations on the parties, which rights
and obligations are recognised by customary law and the D community to which the
parties belong. She argued that a customary union is a marriage in the full sense of
the word except that it is not registered as required by law. The rights and obligations
of parties to it are the same as those of the parties to the marriages recognised by
statute such as community of life or consortium omnis vitae which means that the
spouses live together and are obligated to afford each other conjugal privileges. In
any case, she submitted, the customary union is an institution which is recognised as
a valid union. It results from E the consent of both spouses, the woman's guardian,
the agreement or contract between the woman's guardian and the intending
husband with regard to roora; the payment of roora and the formal handing over of
the woman to the man. Mrs Makarau added another dimension to this issue which
strikes me as valid. She submitted that F the defendant chose to have her
relationship with Gwatidzo governed by customary law, and so only customary law
principles can be applied to determine her rights under that law and in that
relationship. She has a constitutional right to choose which law shall govern her
marital relationship and she chose customary law. It is therefore that law only which
must be applied to her relationship with Gwatidzo. Poignantly Mrs Makarau G
submitted that the plaintiff's claim, which is founded in the general law, is an attempt
to force the application of the general law principles upon the defendant who had not
chosen that the general law should apply to her. Further that the plaintiff's rights
which she acquired in consequence of her civil marriage should not be construed as
automatically and completely eliminating or defeating the defendant's rights under
customary law. She submitted that the application of customary law is sanctioned by
the Constitution. She A relied on a statement in Magaya v Magaya 1999 (1) ZLR
100 (S) where Muchechetere JA stated at 113D-E that:
"... the application of customary law generally is sanctioned by the
Constitution and some would elevate this to a right having been conferred by the
Constitution."
In this connection, the learned Judge of Appeal had referred to ss 23(3) and 89 of
the Constitution. The latter B section recognises that customary law remains valid
and of force in Zimbabwe and the former stipulates that customary law shall apply,
as an exemption from the discrimination provisions, to Africans in matters relating to
adoption, marriage, divorce and other areas in which Africans are involved. The
question which Mrs Makarau raises and which will have to be answered in this
judgment is on what basis should the rights of one woman C married in terms of the
Marriage Act, supersede or supplant or override those of another woman married to
the same man earlier in point of time under a customary union? In other words, on
what basis should the court disregard the latter woman's rights and uphold those of
the former? Mrs Makarau illustrated this dichotomy or difficulty in the following
words, which I must say impress me:
"It is respectfully submitted that the parallel and equal application of the two
laws within the jurisdiction resemble two parallel trains travelling in the same
direction, each with its own facilities different from the next. The plaintiff and the
defendant have chosen the different trains and it is Dr Gwatidzo who has one leg
each in the different trains. The point being made for the defendant is that she
cannot be dragged to the plaintiff's train just for the purpose of being sued for
adultery damages. She has not chosen the plaintiff's train and her right to choose
which train to travel in should not be interfered with. Both women have rights to Dr
Gwatidzo's affection, each granted those rights by a different law. No one law is
superior to the other and therefore the loss should lie where it falls."
These words sound a familiar note to me. In Chapeyama's case supra (which I
understand is on appeal to the Supreme Court) I endeavoured to show that a
customary union is as much a marriage as any other with the exception that it is not
registered. I attempted to show that nothing much is left in the way of the full
recognition for all purposes of a customary union. At 550 in Chapeyama's case, I
stated that a customary union is recognised as valid for the purpose of the status,
guardianship, custody and rights of succession of the children of such union; a claim
for maintenance; the ownership of property both mavoko and other property acquired
by G means of earnings from employment and other productive activities of the
woman; a claim for damages by the husband in respect of the woman's adultery,
inheritance in intestate succession; dependency claims and compensation/payments
under various statutes, among others. The problem of the conflict between
customary law and the general law, as I see it, has dogged us for long, because of
the legislature's reluctance to change the law so as to secure equality for all our
people A irrespective of the nature of the marriage contracted by them. More
importantly, I think the female spouse's rights have been looked at exclusively from
the perspective of, or with regard to, the man's rights. The female spouses' rights
have not been viewed independently from those of the male spouse. The man has
been central in our conceptions of rights in this area of the law - the woman
peripheral. Mrs Makarau's example of the two trains B moving parallel to each other
would change the focus in favour of examining the problem from the woman's
standpoint. A woman to a customary union has acquired rights in that union. A
woman to a civil marriage has also acquired rights in that marriage. Why should the
one woman lose her rights merely because the other woman has acquired certain
rights which purport to exclude the rights of the one? For a while in South Africa the
law as stated in Linda's case supra regarded the first woman as having been
discarded. But the injustice of such an approach to the problem was soon
acknowledged hence the amendment of the law in that country which I indicated in
Chamboko's case supra at 521. The position in South Africa now is that a man who
is a partner in a subsisting customary union shall not be competent to enter into a
civil marriage with another woman. D If he contracts a civil marriage during the
subsistence of a customary union with a different woman that civil marriage is void.
Our own s 16 of the Customary Marriages Act only addressed the problem half way
as shown in Chamboko's case supra. It left out of the picture a customary union and
the gap so created has led to the emergence of problems such as I have to resolve
in this case.
A civil marriage in this country is solemnised in terms of the Marriage Act. No useful
or purpose-related distinction is made between a Christian marriage and a marriage
solemnised by a magistrate. In Makwiramiti's case supra, the Chief Justice
commented with respect to the profanation of the Christian marriage. The marriage
between the plaintiff and Gwatidzo is not a Christian marriage and as such the
question of its profanation, lacking as the marriage does a religious background or
flavour, should not to arise. But as stated by McNally JA in Takadini v Maimba supra,
the delict of adultery is however based on an offence against the institution of
marriage in terms of the Marriage Act. No case to my knowledge has distinguished
between a Christian marriage and an ordinary civil marriage. A Christian marriage
and an ordinary civil marriage are or can be different, hence in terms of s 27(a) of the
Marriage Act a minister of religion is not compelled to solemnise a marriage which
does not conform to the rites of his religious denomination. There is therefore no
reason to treat these two forms of marriage the same in respect of profanation. The
one is religious, the other secular.
The aforegoing would seem to suggest that I have lost track of what this case is all
about. I have not. This case A is concerned with the plaintiff's claim for adultery
damages. I must again refer to the Chief Justice's words in Chawanda's case at
152G-153A that:
"As our law accepts customary unions it should endeavour to secure equality
to the parties thereto and discard the intolerable affectation of superior virtue (to
borrow a phrase) inherited from the colonial past. To continue to exhibit a vestige of
condescension and conservatism towards customary law unions will befits the
current and unyielding movement by the State to B remove the legal disabilities
suffered by African women."
The delict of adultery is no longer as momentous as it used to be in the olden days.
Awards of damages have tended to diminish in size over the years. See Reith v
Antao 1991 (2) ZLR 317 (S); Chapman v Chapman & Anor 1977 (4) SA 142 (NC);
Kumalo v Mandishona 1996 (1) ZLR 434 (H) and the cases therein cited and
Takadini v C Maimba supra. This is an indication of societal liberality in moral views
in this area of the law despite Robinson J's admonition in Katsumbe v Buyanga 1991
(2) ZLR 256 (H) at 258H-259A where he said:
"Accordingly, unless they are prepared to take a strong and principled stand in
this regard in support of the vital institution of D marriage, the courts will only be a
part of society's further slide down the slippery slope to the unlicenced promiscuity
which scoffs at the spiritual prohibitions against pre-marital or extra-marital sex and
which has landed the world in the sexual morass over which the monster AIDS now
presides in all its frightening aspects."
But the law's function is not principally that of social engineering. The law is
conservative. It must, however, adjust to the mores of the people. If the people's
views of extra-marital sex have changed so too must the law. E The reality today is
that society has adopted very liberal views towards the delict of adultery. And for the
African man or woman whose cultural views are determined to a large extent by the
culture and prevalence of polygamous marriages, the delict is that much more
liberally viewed. This together with the argument advanced F by Mrs Makarau
persuades me to the conclusion that the plaintiff's claim in this case cannot succeed.
The plaintiff married Gwatidzo initially under a customary union. From the agreed or
"assumed" facts she was aware of Gwatidzo's customary union with the defendant.
She must have prevailed upon Gwatidzo to register her marriage in terms of the
Marriage Act. That course of action to me did not automatically extinguish the G
defendant's rights in the customary union between her and Gwatidzo. The defendant
was not discarded as a wife. This is borne out by Gwatidzo's continued sexual
association with the defendant and his failure to formally terminate the customary
union by giving "gupuro" (Pasipanodya v Muchoriwa 1997 (2) ZLR 182 (S)). There is
no allegation by the plaintiff that she required of Gwatidzo to terminate the customary
before contracting a civil marriage with him. She had ample opportunity to do so after
living with him for a while A also in a customary union.
If the plaintiff's marriage was a Christian marriage perhaps I would have reached a
different conclusion. But it is not. The parties must continue to ride in their respective
trains each according to her choice of train with the attendant privileges and
frustrations. The real culprit in this tragi-comedy is Gwatidzo and to my mind the
women must exhibit sufficient pride in themselves unless they are prepared to carry
on as they began the train journey B with Gwatidzo. I am satisfied that unless and
until the legislature steps in and changes the law, there is no justification for
subordinating the defendant's rights in relation to Gwatidzo to those of the plaintiff in
relation to him. The loss if any, to borrow Mrs Makarau's words must lie where it falls.
It seems to me that on this basis, C this is a proper case for granting absolution
from the instance, if it should not be dismissed on another basis, as I proceed to do. I
do not think that the law of adultery must be used for the purpose of validating one
form of marriage as against another by women who find themselves in the situation
of the parties in this case.
If I am wrong in the approach I have taken there is another approach on which the
plaintiff's claim should fail. In D Takadini v Maimba supra, McNally JA stated that
the action for adultery is based in Roman-Dutch Law. The damages are recoverable
on the grounds that the aggrieved spouse has suffered an injury (contumelia) and
has lost companionship, love, affection, comfort and services by the aggrieved
spouse. The learned Judge of Appeal said at 738F that:
"Evidence of adultery is therefore only the beginning of the enquiry. The
quantum of damages is really dependant on the factual situation in relation to the two
grounds mentioned. In particular, on the first ground, has there been injury or
contumelia inflicted on the aggrieved spouse, and to what extent was it self-inflicted?
Doyle v Salgo 1957 R&N 840 (FS).
And on the second ground, to what extent had that companionship, love,
affection, comfort and services already disappeared F before the adultery took
place?"
He then examined the facts of the case and came to the conclusion that virtually no
consortium was lost; that although there was contumelia it was more on the part of
the husband than the adulteress. He speculated, as I am also entitled to do in this
case, that the husband entered into a formal marriage because the plaintiff,
suspecting danger, insisted on the formalisation and the husband could not refuse
without explaining why. I can G speculate further that the formal marriage was
entered into for the purpose of defeating the defendant's rights and gaining an unfair
advantage. In casu, I have shown that initially the plaintiff accepted a polygamous
situation. She was aware of the defendant's customary union with Gwatidzo. It is she
who in fact disrupted the defendant's relationship with Gwatidzo. She could not
possibly have suffered any real injury or contumelia and she could not have lost any
consortium to talk about. Her claim A for adultery damages though technically valid
is not such as would warrant any award of damages. Talking of technical adultery
Ebrahim JA in Kanjera v Muchanyuka S-222-96 said:
"It seems to me that as soon as the appellant became aware that the
respondent was married to Peter Chakanyuka and thereafter continued to associate
with him she technically and knowingly committed adultery. In my view, however, it
would be taking an armchair view to have expected her on making the discovery to
have immediately left her matrimonial home taking with her their B newly born child
and leaving behind a man who had entered into a customary union with her by
paying lobola for her. One could have sympathy for him (sic) but it could never have
been an easy decision for the appellant on what to do once faced with the
predicament she found herself in.
In the light of these facts as outlined above, I am of the view that no award
should have been made against her for what amounts C to nothing more than a
technical transgression by her. Compare Madziwa v Muchatuta S-45-96. The
appellant by her conduct committed adultery but this was nothing more than a mere
technical transgression deserving of an award of damages being levied against her."
This statement applies with equal, if not greater, force to this case.
I think women in circumstances of the plaintiff should not bring actions for adultery.
The court's time is wasted by D persons who must know that they have no real
claim at law. It is necessary, I think, in order to discourage women in this class of
litigant from instituting actions of this kind for the court to award costs against them. I
was very much inclined to do so in this case were it not for the fact that a "technical
adultery" was committed and that Mrs Makarau submitted that each party must pay
its own costs regardless of the result. But there are costs in E this matter which
must be borne by the defendant. The trial did not commence on time and was
postponed three times during the same week because of the conduct of the
defendant's legal practitioners who were at pains to ensure that Mrs Makarau, who
was out of the country for part of that week, should represent the defendant at the
trial but were not open with the court in that respect. As a result, the commencement
of the trial was delayed for F a reason that was not put to the court. The defendant
must therefore, pay the costs associated with those postponements.
In the result, the plaintiff's claim is dismissed. The defendant shall pay the costs
occasioned by the postponements of the trial, otherwise each party shall pay its own
costs.
KATEKWE v MUCHABAIWA 1984 (2) ZLR 112 (SC)
Summary
Under customary law, as originally applied, an African woman was a perpetual minor
who needed a guardian to assist her in her contractual obligations. Also under
customary law, only the guardian of a woman was entitled to claim and keep
damages for seduction of a woman. The guardian also had to give his consent to her
E marriage, irrespective of her age. In effect, the father owned the daughter. If she
was seduced and thus wronged, the father himself was wronged and entitled to
damages.
Over the years, legislative and judicial moves have been made to loosen the legal
disabilities of African women. These moves have culminated in the Legal Age of
Majority Act 1982, s 3 of which provides that a person shall attain the legal age of F
majority on attaining the age of 18 years. Section 3(3) makes this provision
applicable for the purposes of any law, including customary law. Parliament's
intention was to create equal status between men and women and, more
importantly, to remove the legal disabilities suffered by African women because of
the application of customary law. African women now have full legal capacity. An
African woman can contract a marriage without the consent of her guardian because
she no longer G needs a guardian. She may allow her father to ask for roora or
lobola from the man who wants to marry her, but this is her choice. Roora is not a
prerequisite to a lawful marriage.
It also follows that since the guardian of an African woman must lose his legal right
to claim roora or lobola for her upon attainment of majority, the whole purpose
underlying H the action for damages for seduction falls away. He loses the right to
sue for damages, and it passes to the daughter. She cannot vest that right in him.
Judgment
D A B Robinson: for the appellant: Under customary law, an action for damages for
seduction may be brought by the guardian of an unmarried female where sexual
intercourse has taken place between that female and the seducer without the
consent of the guardian, the B purpose of the action being to compensate the
guardian for the loss in value of the female's potential lobolo price. Section 3(1) of
the Act confers majority status upon a person who attains the age of 18 years with
the result that, upon attaining the said age of majority, such C person acquires full
legal adult status and is released from the guardianship or legal control or power of
any party.
In providing, in s 3(3), that the attainment of majority status at the age of 18 years
"shall apply for the purpose of any law including D customary law", the intention of
the Act was to create a status of majority applicable to all Zimbabweans equally,
irrespective of race or sex.
This being the case, if follows that a black Zimbabwean female who E is of the age
of 18 years or over is not subject to the guardianship or legal control or power of any
person.
Accordingly, to allow a person, in relation to a black Zimbabwean female who has
attained her majority, to recover damages in respect of F that female's seduction,
would be contrary to both the letter and spirit of the Act since this would be
tantamount to denying a black Zimbabwean female full and legally effective majority
status.
The rationale behind an award of damages for seduction is to compensate G the
guardian for the loss in value of the seduced female's lobolo price (see De Souza v
Munjoma 1951 SRN 260; 1951 SRN 562 (1928/62), Fani Sibandi v Elijah 1956 SRN
507; 1956 SRN 795 (1928/62), Bennet v Masawi 1958 SRN 598; 1958 SRN 863
(1928/62) and Clifton Khumalo v Nathaniel Mthungwa 1979 ACC 22 at 23), which H
presupposes a legal entitlement on the part of the guardian to the female's lobolo
price.
However, since, in the wake of the Act, a black Zimbabwean female who is a major
may contract a valid marriage without a parent's or guardian's consent, it follows
that, in so far as her guardian must lose his legal right to claim lobolo for her upon
her attaining her majority, the whole purpose underlying the action for damages for
seduction A falls away. Consequently, there can be no impairment of a non-existent
right.
When one speaks of sexual intercourse taking place between the female and the
seducer without the guardian's consent, one is, in B effect, referring to sexual
intercourse by the female which diminishes the female's potential lobolo value
without the guardian's consent.
However, once a daughter becomes a major, her father's consent is no longer of
legal relevance since the father loses his legal right to lobolo C upon his daughter's
attaining her majority.
To uphold the decision of the Court a quo would not be in conformity with the letter
and spirit of the Act and with the progressive thinking of Government, in that this
would in effect- D
(a) deny a black Zimbabwean female who is a major the right and freedom
to indulge in sexual relations outside of a validly contracted marriage without
rendering her lover liable to a possible action for damages for her seduction at the
instance E of a third party;
(b) subject a black Zimbabwean female who is a major to the indignity and
inferiority of still being regarded under customary law as a minor in respect of whom
a third party has F a proprietary interest.
S J R Chihambakwe, for the respondent.
Dumbutshena G CJ: In this appeal there is only one ground of appeal which reads:
"TAKE NOTICE that the above-named Appellant hereby notes an appeal
against the judgment delivered by the Community Court for the Province of H
Midlands held at Chivhu on the 5th January, 1984, in the case No. 224 of 1983
between the above-named Respondent as Plaintiff and the Appellant as Defendant
on the ground, raised in limine, that the Presiding Officer erred in law in holding that
notwithstanding the fact that the Respondent's daughter, Molly (born 31st March
1963), was a major at the time when it is admitted by Molly that she first had sexual
intercourse with the Appellant, being the 15th May, 1983, the Respondent has locus
standi) and is entitled to claim damages for the seduction of his said A daughter,
Molly.
In the premises the Appellant prays that the judgment of the Community Court
for the Province of Midlands held at Chivhu in the case No. 224 of 1983 be set aside,
with costs, and that the Appellant's objection that the Respondent has no locus
standi) to claim damages for the seduction of his said daughter, Molly, be upheld." B
It appears from the record that no evidence was led before the Community Court. If
evidence was led there is no record of such evidence. However, it is apparent from
the Notice of Appeal that the appellant, then defendant, raised a point in limine that
the respondent, then Plaintiff, had no locus standi and was not entitled to claim C
damages for the seduction of his daughter who had by then attained the age of 18
years. In fact the daughter was born on the 31 March 1963.
The Community Court ruled as follows: D
"(1) That seduction took place several times in Harare and here in Charter.
(2) That the defendant agreed to the Jurisdiction of the Court.
(3) That the girl, though 20 years of age used her discretion that she is
under the guardianship of her father.
 (4) That Section 17(1) of the African Customary Law and Primary Courts
Act E No 6 of 1981 should apply.
(5) That defendant admitted seduction before marriage.
(6) That the Legal Practitioner's argument was not based on any
precedent by the Supreme Court of Zimbabwe or of any other Court of competent
Jurisdiction.
(7) Therefore F I used my discretion that damages should be awarded."
The appellant then appealed to the District Court. The same issue as raised before
the Community Court was argued in the District Court. The District Court dismissed
the appeal with costs. The learned G magistrate agreed that the Legal Age of
Majority Act 15 of 1982 conferred majority status on any person in Zimbabwe who
attains the age of 18 years. He then stated his reasons for dismissing the appeal as
follows: H
"The issue to be determined is indeed although the Legal Age of Majority Act
15/82 confers majority age was it the intention of the Legislature that, as in the
instant case of damages for seduction, the father or guardian should not be awarded
seduction damages because she is a major in terms of the Act. The provisions of
Section 3 (3) are quite explicit and to the point. Though that is the case this court is
fully of the strongest opinion that at no time did the Legislature intend to do away
with the award of damages despite indicating that the Legal Age of Majority applies
also in relation to Customary Law.
One is constrained in arriving at this decision to ask if the defendant's
submissions A are upheld before this court, would that not be eradicating the whole
fabric of our society's Customs. Was it the intention of Parliament in enacting section
3 (3) that the tenets of custom should be done away with? The court is of the
strongest opinion that at no time was it the intention of the Law giver."
It seems clear to me that the learned magistrate's approach B was wrong because
he was primarily concerned with the effect on society of the abolition of the
guardian's right to sue for seduction damages. The Court a quo held that depriving
the father or guardian of this right would result in the eradication of "the whole fabric
of our society's C customs."
The appellant now appeals to this Court against that judgment. Again the ground of
appeal is the same that was argued before the District Court. It is said the District
Court "erred in not upholding the D Appellant's exception that in view of the fact that
the Respondent's daughter, Molly (born on the 31st March, 1963), was a major at the
time when it is admitted by Molly that she first had sexual intercourse with the
Appellant, being the 15th May, 1983, the Respondent does not have locus standi
and is not entitled to claim damages for the E alleged seduction of his said
daughter Molly, in consequence of which the Respondent has no cause of action
against the Appellant."
The Legal Age of Majority Act repealed the Legal Age of Majority Act [Chapter 46].
Sections 2 and 3 of [Chapter 46] read as follows: F
 "2. A person shall be deemed to have attained the legal age of majority when
he attains the full age of twenty-one years.
3. Nothing in this Act contained shall extend or be construed to prevent -
G
(a) any testator from bequeathing his property in such manner as by
the laws of the Colony of the Cape of Good Hope he might have done before the
twentieth day of June, 1829; or
(b) any person under the age of twenty-one years from attaining his
H majority at an earlier period by operation of law."
Now subs (1), (2), (3) of s 3 of Act 15 of 1982 read:
"3. (1) On and after the fixed date a person shall attain the legal age of
majority on attaining eighteen years of age. A
(2) A person who immediately before the fixed date has not attained the legal
age of majority shall on that date attain the legal age of majority if he or she has then
already attained eighteen years of age.
(3) The provisions of subsections (1) and (2) shall apply for the purpose B of
any law including customary law and, in the absence of a definition or any indication
of a contrary intention, for the construction of "full age", "major", "majority", "minor",
"minority" and similar expressions in-
(a) any enactment, whether passed or made before, on or after the
fixed date; and C
(b) any deed, will or other instrument of whatever nature made on
or after that date."
It can be seen that the repealed Act did not have the provisions now D covered by s
3(3) of Act 15 of 1982. What was the intention of the Legislature when it enacted s
3(3)? In my view the Legislature intended to put right the anomaly created by the
exclusion of African women from attaining majority status because customary law
deemed them perpetual minors. The Legal Age of Majority Act [Chapter 46] did E
not without expressly saying so cover African women. Now subs (3) of s 3 of Act 15
of 1982 expressly says:
The provisions of subsections (1) and (2) shall apply for the purpose of any
law including customary law . . .".
In F my judgment the Legislature intended to cover within this provision African
women whose status as perpetual minors fell within the ambit of customary law. I
find no support in the language of s 3 of Act 15 of 1982 that Parliament intended to
maintain the status quo in as far as the guardian's right to claim damages for the
seduction of a daughter who G has attained majority status. On the contrary, the
indications are that Parliament's intention was to create equal status between men
and women and, more importantly, to remove the legal disabilities suffered by
African women because of the application of customary H law. This view is not only
common sense, it is supported by the clear and unambiguous language used in
subs(3).
That there has been a trend towards the removal of legal disabilities
suffered by African women becomes clear through a close look at s 3 of the African
Law and Tribal Courts Act [Chapter 237], as amended by Act 11 of 1977, which
provided:
"3. (1) Subject to the provisions of this section and of any other enactment, in
A the determination by any court of law of any civil case between Africans or
between an African and a person who is not an African the decision may be given in
accordance with customary law.
(1a) Save as otherwise provided in this section, unless the justice of the
case otherwise requires- B
(a) customary law shall be applicable in any case which is between
Africans and which relates to-
(i) seduction or adultery; or
(ii) the custody or guardianship of children; or
(iii) the devolution otherwise than by will of movable property
on he C death of an African:
Provided that where the deceased was an African
mentioned in section 69 of the Administration of Estates Act [Chapter 301], the
provisions of that section shall apply; or
(iv) rights in land which is not held under individual registered
title; or D
(v) marriage consideration; or
(vi) a marriage between Africans contracted under customary
law, whether or not it has been solemnised under the African Marriages Act [Chapter
238]; and
(b) the law of Rhodesia shall be applicable in any other case. E
(2) The capacity of any African to enter into any transaction or to enforce or
defend any rights in a court of law shall, subject to any enactment affecting any such
capacity, be determined in accordance with the law of Rhodesia:
Provided that, if the existence or extent of any right held or alleged to be held
by an African or of any obligation vesting or alleged to be vesting in any African F
depends upon or is governed by customary law, the capacity of the African
concerned in relation to any matter affecting that right or obligation shall be governed
by customary law.
(3) Subject to any enactment, where-
 (a) it appears- G
(i) from express agreement that the parties have agreed; or
(ii) from the nature of the circumstances surrounding the matter
within which any case as arisen that the parties have agreed or can be presumed to
have agreed; that customary law or, as the case may be, the law of Rhodesia should
be H applicable; or
(b) the parties express to the court their consent to customary law, as the
case may be, the law of Rhodesia being applicable;
that law shall be applied accordingly, and any consent referred to in
paragraph (b) shall be recorded in writing and attached to the court record of the
case and shall be irrevocable.
(4) In cases where no express rule is applicable to any matter in controversy,
A the Court shall apply the principles of justice, equity and good conscience.
(5) Notwithstanding anything to the contrary in this section, in any case
relating to the custody of children the interests of the children concerned shall be the
paramount consideration, irrespective of which law or principle is applied. "
What is significant in this section is the fact that customary law "shall B be
applicable in any case which is between Africans and which relates to-
(i) seduction or adultery;"
and other matters mentioned in the section. A court had to apply C customary law
when determining a claim for damages for seduction "unless the justice of the case
otherwise requires." I view this as meaning "unless in the exercise of the presiding
officer's discretion justice would be done by not applying customary law." However,
the right of the father to claim damages for seduction under customary law was D
never in doubt.
The African Law and Tribal Courts Act was repealed by the Customary Law and
Primary Courts Act 6 of 1981. Section 3 of Act 6 of 1981 provides: E
"3. (1) Subject to the provisions of this section and of any other enactment,
unless the justice of the case otherwise requires-
(a) customary law shall be applicable in any civil case where-
(i) the parties have expressly agreed that it should apply; or
F
(ii) having regard to the nature of the case and the
surrounding circumstances, it appears that the parties have agreed it should apply;
or
(iii) having regard to the nature of the case and the
surrounding circumstances, it appears just and proper that it should apply;
 (b) the G general law of Zimbabwe shall be applicable in other
cases.
(2) For the purposes of paragraph (a) of subsection (1)"surrounding
circumstances", in relation to a case, shall, without limiting the expression, include-
(a) the mode of life of the parties;
(b) the subject matter of the case; H
(c) the understanding by the parties of the provisions of customary
law or the general law of Zimbabwe, as the case may be, which apply to the case;
(d) the relative closeness of the case and the parties to customary
law or the general law of Zimbabwe, as the case may be.
(3) The capacity of any person to enter into any transaction or to enforce A
or defend any rights in a court of law shall, subject to any enactment affecting any
such capacity, be determined in accordance with the general law of Zimbabwe:
Provided that, if the existence or extent of any right held or alleged to be held by any
person or of any obligation vesting or alleged to be vesting in any person depends
upon or is governed by customary law, the capacity of the person concerned in
relation to any matter affecting that right or obligation shall be B governed by
customary law.
(4) Notwithstanding anything to the contrary in this section, in any case
relating to the custody of children the interests of the children concerned shall be the
paramount consideration, irrespective of which law or principle is applied." C
Section 3 does not specify those areas of matters which fall for determination by the
primary courts in which customary law shall be applicable. The section gives a
discretion to the parties whether the matter in issue shall be determined in
accordance with customary law or the general law of Zimbabwe. D
It is my view that in terms of s 3 of Act 6 of 1981 an African woman who has been
seduced can make an election as to which law she wants to be applied. If she elects
the general law of Zimbabwe, then she E herself can bring an action for damages
for seduction. I think that in enacting s 3 Parliament "appears to have used a device
which may have been expected to permit of some elasticity and provide scope for
development, so as to achieve the primary desideratum of an equitable decision
between the parties without laying down any hard and fast F rules as to the system
of law to be used to attain that end": per SCHREINER JA in Ex p Minister of Native
Affairs: In re Yako v Beyi 1948 (1) SA 388 (AD) at 397. That appears to have been
the overall intention. However, the proviso to section 3 which reads: G
"Provided that, if the existence or extent of any right held or alleged to be held
by an African or of any obligation vesting or alleged to be vesting in any African
depends upon or is governed by customary law, the capacity of the African
concerned in relation to any matter affecting that right of obligation shall be governed
by customary law." H
still deprived an African woman of the right of election where the right, as in this
case, vested under customary law in the guardian.
Apart from the above trend in recent legislation the courts of this country have by
their judgments sought to heal the pangs inflicted on African women by legal
disabilities brought about by customary law. The courts ruled from time to time that
emancipated women were A entitled to sue in their own right unassisted by their
guardians. An African woman who was a licensed trader and was carrying on
business could sue in mercantile transactions arising from her business in her own
right. A nursing sister or a school teacher or other such professional women could
sue in their own right without being assisted by B their guardians. In this regard
SIMPKINS P said in Tasara v Agnes Manjaya 1958 SRN 581:
"The rule laid down in Mana v Nyamayaro 1950 SRN 237 that, in general, a
native woman has no locus standi in judicio and must be assisted by her guardian,
C cannot be held to have a general application. In Mabigwa v Matibini 1946 SRN
117 it was held that in certain circumstances she may sue and be sued in her
individual capacity unassisted, and in Elizabeth Makola v Godongwe 1954 SRN 409
it was held that whilst there is a presumption that a native woman is incompetent to
enter into a contract, that presumption may be rebutted."
A D widow or a divorcee may sue or be sued personally unassisted (Elizabeth v
Emelda 1966 AAC xiv).
In a practice note relating to the case of Exavier v Dolan 1960 SRN at 677 it was
said: E
"This court draws attention to the fact that the plaintiff in the lower court, a
native female, sued in her own name. From the record it appears that she is
emancipated as she is living in Haran (an African township in Salisbury) and earning
her own living. We consider that this is a case of an emancipated woman suing in F
respect of a personal injury as a result of an assault upon her and is therefore a case
where she need not be assisted by her guardian."
See Goldin & Gelfand: African Law and Custom in Rhodesia at 193-194.
Following G this trend s 3(2) as read with s 3(1) of the African Law and Tribal
Courts Act [Chapter 237] (now repealed) received from the courts a wide and
generous interpretation. In Chikosi v Chikosi (1) 1973 (1) RLR 161 at 164A-C; 1973
(3) SA 142 (R) at 143H H 144B, DAVIES J as he then was, considered s 3(2) of
that Act as it related to marriages contracted under the African Marriages Act
[Chapter 105 of 1963] and remarked as follows:
1984 (2) ZLR p122
DUMBUTSHENA CJ
"Since the right of an African to claim the dissolution of a civil marriage is not
one of the masters referred to in s 3(1)(a), the common law and not customary law is
clearly applicable in such an action, and the capacity of a married woman to bring
such action must therefore be determined according to common law. There is no
doubt that under the common law a married woman can sue her husband for divorce
without assistance, and the fact that she may still be regarded as in the A position
of a minor under customary law, is irrelevant. It may be remarked that even prior to
the enactment of the statutory provisions in question this was the accepted position.
See Sikwela v Sikwela, 1912 SR 168; Iden v Philemon, 1918 SR 140; Ellen v Jim,
1931 SR 118.
In B my view the same position must apply in regard to such ancillary relief
as maintenance after marriage, and therefore, by necessary inference, maintenance
pendente lite. In such a case there seems to be no room for the application of the
proviso to subs (2) and s 3."
This loosening of the legal disabilities of African women is highlighted C in the
headnote to Chikosi v Chikosi (2) 1973 (3) SA 145 as follows:
"The parties who are Africans contracted a customary union which was duly
registered under the African Marriages Act, Chapter 105 (R). Thereafter while living
in the United States they had entered into a civil marriage by Christian rites. D Their
children were born subsequent to such marriage. In an application by the wife for an
order awarding her the custody of the children pendente lite, maintenance and other
relief, held, that the justice of the case required the common law principles to apply.
That would give the applicant locus standi to apply unassisted by her husband for
the custody of the children. Held, further, that the applicant was entitled to payment
of maintenance for the children." E
The movement towards the removal of some of the legal disabilities affecting African
women received further attention in Jirira v Jirira and Anor 1976 (1) RLR 7 at 13E
where NEWHAM J said:
"In these circumstances, and despite Mr Chinengundu's submissions that the
F property disputes between the parties should be resolved in accordance with
African customary law, I find myself in agreement with Mr Whaley, when he argues
that the parties' way of living and the nature of the transactions between them are so
removed from the incidents and the customary way of life of the African people, that
in principle it would be contrary to the justice of the case to apply African law G and
custom to the solution of the property disputes of the parties. Alternatively he
contended that, even if in principle customary law does govern the parties'
proprietary rights, there is no express rule in customary law applicable to the peculiar
facts of this case and, therefore, the principle of justice, equity and good consience
must be applied. Mr Chinengundu based his submissions upon the provisions of
section 13 of the African Marriages Act [Chapter 105]. This section reads: H
"13. The solemnisation of a marriage between Africans in terms of the
Marriage Act shall not affect the property of the spouses, which shall be held,
may be disposed of and, unless disposed of by will, shall devolve according to
African law and custom."
The learned judge held that the proprietary rights of the parties were A governed by
Rhodesian law and the wife's claim for a share of that property succeeded. The
question of maintenance and custody were governed by Rhodesian law and orders
were accordingly made. In terms of s 3 of Act 6 of 1981 the same results which were
achieved in Jirira v Jirira supra can now be achieved by applying ss (1) and (2) of s 3
B of Act 6 of 1981.
What has been directly affected and repealed by implication by Act 15 of 1982 is the
proviso to s 3(3) of Act 6 of 1981. Now the capacity to enforce or defend any rights in
a court of law or to enter into contractual C obligations is determined and governed
by the general law of Zimbabwe. African women now have full legal capacity.
I have cited the above cases because they are important as indicators of a trend
which culminated in the enactment of Act 6 of 1981. Mr D Robinson has drawn our
attention to the areas of customary law which that Act has changed, namely, the
custody of children, maintenance of the wife and the minor children of the marriage.
Under customary law children belong to their father (if lobola has been paid). These
changes give support to Parliament's intention which led to the enactment of E Act
15 of 1982. Now s 3(4) of Act 6 of 1981 provides:
"(4) Notwithstanding anything to the contrary in this section, in any case
relating to the custody of children the interests of the children concerned shall be the
paramount consideration, irrespective of which law or principle is applied." F
With regard to the maintenance of a wife and children s 12(3) provides as follows:
"Without derogation from its powers to make any other order for maintenance,
a community court may make an order for maintenance in accordance with the
provisigns of the Maintenance Act [Chapter 35]."
and G s 12(4) is to this effect:
"(4) For the purposes of an order for maintenance in terms of subsection (3) a
H community court shall, notwithstanding anything to the contrary contained in
customary law, regard-
(a) the person who, according to customary law, is the husband of a
woman as being primarily responsible for the maintenance of that woman during
1984 (2) ZLR p124
DUMBUTSHENA CJ
the marriage and after the dissolution of their marnage, until her
remarriage;
(b) the father of a child as being pumanly responsible for the maintenance
of that child until the child attains the age of majority."
The above provisions have brought into line with the general law of A Zimbabwe
the customary practice which after the dissolution of marriage did not provide for the
maintenance of the wife and required the father to pay "Chiredzwa" - rearing fee for
the care and upbringing of his child only if he demanded his child from the family of
his divorced B wife.
In the instant case we are concerned with a claim for damages for seduction by a
father or guardian whose daughter has attained the age of majority, that is, 18 years.
Mr Chihambakwe posed this question: C "What was the general effect of this Act
(15 of 1982) vis-à-vis customary law and in particular on the guardian's right to sue
for damages for his daughter's seduction?"
It is common cause that the effect of the Legal Age of Majority Act is D that the old
customary law concept, that an African woman was a perpetual minor who needed a
guardian to assist her in her contractual obligations, has been done away with
because every person acquires majority status on the attainment of the age of 18
years. It was also common cause that an African woman with majority status can E
contract a marriage without the consent of her guardian because she no longer
needs a guardian. As Mr Chihambakwe put it "there cannot be a major over another
major". He contended in his heads of argument:
"What the Act has done is to create a right which is there for the parties and/or
F interested persons to take, namely:
-in the case of lobola, a major woman has now the freedom to marry with or
without the involvement of the father (guardian) and/or lobola;
-in the case of seduction damages, a major woman has now the freedom to
G deny her father (guardian) the right to seduction damages."
It seems to me that an African woman with majority status can, if she so desires,
allow her father to ask for roora/lobola from the man who wants to marry her. She
and she alone can make that choice. If she H does agree to her father asking for
roora from his future son-in-law before marriage the father can go through the
contractual procedures required before an African marriage is effected. The position,
as from the 10 December 1982, when the Legal Age of Majority Act came into effect,
is that an African woman of majority status can contract a marriage, whether that
marriage be in terms of the African Marriages Act [Chapter 238] or the Marriage Act
[Chapter 37] without the A consent of her guardian.
In this respect there is substance in Mr Robinson's contention which is to this effect:
". . . since, B in the wake of the Act, a black Zimbabwean female who is a
major may contract a valid marriage without a parent's or guardian's consent, it
follows that, insofar as her guardian must lose his legal right to claim lobola for her
upon her attaining her majority, the whole purpose underlying the action for damages
for seduction falls away. Consequently, there can be no impairment of a non-existent
C right".
Mr Chihambakwe sought to meet this contention by arguing that the delict of
seduction under customary law is not founded on the relationship between the girl
who is seduced and her guardian. It is a right that D belongs to the father but, says
Mr Chihambakwe "a major woman has E now the freedom to deny her father
("guardian") the right to seduction damages," presumably by refusing to testify
should her father sue for such damage against her will. He developed his argument
by contending that a woman who has attained majority status has the right to insist
on customary law being applicable in seduction claims, thereby vesting the right to
claim damages in her guardian or father. Mr Chihambakwe's ingenious argument
falls apart when the concession he made that "there can be no major over another
major" is taken into account. A woman with majority status cannot surrender her
majority in order F to enable her father to sue for damages for seduction. The father
has no independent legal right to seduction damages, seduction being a delictual
wrong. Mr Robinson argued that -
". . . if the father's entitlement to lobola now hinges upon his major daughter's
G discretion, so to speak, then the father has no legal right to lobola in respect of
such major daughter at the time of her seduction and, consequently, the father has
no cause of action against the seducer irrespective of the subsequent wishes of the
father's daughter, who cannot confer upon her father a delictual right of action which
he does not otherwise have." H
The action for seduction embraces in our general law two claims; one is for
satisfaction for the defloration of the girl and the other for lessening her chances of a
successful marriage. The girl seduced is entitled to be compensated for the loss of
her virginity, and for her diminished chances of making a suitable marriage. See Bull
v Taylor 1965 (4) SA 29 (AD) at 39.
According to van den Heever "there are three requisites to a claim of damages on
the ground of seduction: (1) that the woman has been A seduced, (2) that there has
been sexual intercourse and (3) that the woman was a virgin up to the time of
seduction" (see Breach of Promise and Seduction at p 45).
The difference between an action for seduction in the general law B and under
customary law is that only the guardian of a woman is entitled to claim and keep
damages for seduction under customary law. Another difference is that under
customary law a woman need not be a virgin at the time she is seduced. In the past
there was a difference C between the Shona and the Ndebele. Among the Ndebele
damages for seduction were not claimable if the woman was not a virgin but now the
Ndebele follow the Shona custom. See African Law and Custom in Rhodesia, supra
at 209. Under customary law a seduced woman's chances of marrying were reduced
because virtue was taken out of her D and because of her loss of that virtue the
father was not entitled to claim his full roora.
I have alluded to these differences because it is my intention to discuss both the
general law and the customary law and attempt to E reconcile them.
In my view the right under the general law to seduction damages is personal to the
person seduced. It is a delict. It cannot be surrendered to the guardian by an adult
woman. I agree with Mr Robinson when he F says that "for there to be a remedy in
delict there must be an infringment of a right at the time of the wrongful act". That is
common sense and simple logic. Seduction in customary law is based, so it seems
to me, on the concept of ownership. The father owns the daughter. If she is seduced
and thus wronged, it is the father who is wronged and who is G entitled to
damages. That might have been so under customary law as long as the woman
remained a minor under the guardianship of her father. Can it still be right now that
the woman is a major and no longer a minor? It cannot be right it would be wrong for
the courts to H perpetuate a woman's minority status by inventing a legal theory of
conferring a right on one's guardian and then going against the law of the land. The
courts must hold that under present circumstances absolute equality between men
and women must prevail.
In this appeal we are not concerned with roora but counsel have made submissions
on it. I intend in passing to suggest guidelines which A may be useful in future when
the question of roora arises before a daughter with majority status decides to
contract a marriage. Counsel are agreed that an African woman who is a major can
contract a marriage without the consent of her guardian or the payment of roora.
That is the effect of ss (3) of s 3 of Act 15 of 1982. That was common B cause.
However roora is different from damages for seduction. Mr Robinson's contention
was, and I agree with him, that
"If the daughter causes her prospective husband to settle the matter of lobola
with her father before she marries her prospective husband, then the father's right to
such lobola is based on contract freely entered into between C him and his
prospective son-in-law . . . the father's entitlement to lobola now hinges upon his
major daughter's discretion . . .".
As I see it what the Legal Age of Majority Act has done with regard D to roora is
this: The major daughter will say to her father "Father I want to get married. You
have no right to stop me. I do not require your consent because I have majority
status. But if you want roora you are free to negotiate with my prospective husband.
If he agrees to pay roora that is a contract, an agreement between you and my
prospective E husband. If he refuses to pay roora I shall go ahead with my
marriage." That without deciding the effect of Act 15 of 1982 on the customary
requirement of the payment of roora before marriage, seems to me to be the present
position having regard to the consequences flowing from Act 15 of 1982. One of
those consequences is in the words of the F then Minister of Justice published in
the Herald on 6 September 1983:
"The father or guardian cannot frustrate or prevent a marriage from taking
place by his insistence on payment of roora. He can only enforce what the son-in-law
promised to pay prior to the marriage - that is after the marriage has been
completed." G
This Act created, in the words of the Minister of Justice "advantages for women
which some people would find unpalatable."
Finally I now turn to the question in issue: Does the father still have H the right to
sue for damages for the seduction of his major daughter? The answer is simple. He
has not because his daughter is a major and cannot vest her own right in her father.
He has lost his right under customary law to sue for damages for seduction. What
then is the position? It is this. The right to sue for damages for seduction - a delict -
now falls on the daughter. The daughter can sue for damages for seduction under
the general law of Zimbabwe, she has now the capacity to do so. That she was
given, so to speak, by s 3 of Act 15 of A 1982. She can bring her claim for damages
for seduction under the general law. If she does and damages are granted and her
father brings a claim for damages under the customary law, he will be non-suited. He
will have no cause of action.
The B result of the conclusion to which I have come is this: The daughter can sue
for damages for her seduction and not the father. If the daughter is a minor the right
of action remains with the father under the customary law. I believe this was the
intention of the Legislature. It C accords with both the letter and the spirit of Act 15
of 1982. I am further of the view that it is more probable and will be more in the
interests of justice now that the right to sue for seduction damages lies in a major
woman, the only difference being that the major woman who has been seduced must
have been a virgin.
In my view the above was the intention of the Legislature and the object the
Legislature sought to achieve was the liberation of African women from the legal
disadvantages of perpetual minority. I believe, and I think I am right in deducing, that
the Legislature was fully aware of the legal incapacity suffered by African women
and fully appreciated what they intended to achieve by enacting Act 15 of 1982.
In my judgment the respondent neither had the right of action in this matter nor locus
standi. In the result the appeal is allowed and by consent there will be no order as to
costs.