Morgan Richard Tsvangirai and Elizabeth Macheka v Munamato Mutevedzi N.O and Locadia Karimatsenga

### Preamble
1
HH 351-2012
HC 10717/12
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MORGAN RICHARD TSVANGIRAI

and

ELIZABERTH MACHEKA

versus

MUNAMATO MUTEVEDZI N.O

and

LOCADIA KARIMATSENGA

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 14 September 2012

Advocate T Mpofu assisted by I Chagonda, for the applicants

No appearance for the respondents

Urgent Exparte Chamber Application

BHUNU J:  The melancholic drama unfolding in this case makes one wonder whether these are the wages of marrying during the sacred month of November in apparent violation of a well-established Shona custom prohibiting marriage during that month. The first applicant’s intended marriage to the second applicant is mired in perpetual controversy and acrimony as the couple continues to be hounded by the first applicant’s marriage to the second respondent allegedly contracted on 21 November 2011.

Both applicants intend to be joined in holy matrimony tomorrow 15 September 2012 in terms of the monogamous civil rights under the Marriage Act [Cap5:11]. The second respondent filed an objection with the first respondent in terms of s 19 of the Act, on the basis that she is married to the first applicant in terms of an unregistered customary law union. That being the case, the first applicant’s intended marriage to the second applicant has the adverse effect of nullifying her customary law marriage thereby depriving her of her rights acquired under customary law.

The first applicant flatly denied ever having been married to the second respondent as alleged or at all. This prompted the first respondent in his capacity as a magistrate to conduct an enquiry to determine whether in fact she was married to the first applicant in terms of customary law. The presiding magistrate ruled in favour of the second respondent and cancelled the marriage licence authorising the marriage.

Counsel for the applicants prevailed upon me to hear the matter as an exparte application on an urgent basis arguing that respondents’ legal practitioners were deliberately avoiding service by not answering their phones in order to sabotage the celebration of the marriage already set for tomorrow. Having regard to the urgency of the matter and that the determination being challenged was issued late this afternoon I reluctantly granted my indulgence.

A reading of the magistrate’s reasons for determination shows that he had regard to evidence laid before him in the form of affidavits and a video recording of the disputed marriage ceremony.

Having considered the evidence before him the magistrate had this to say at p 5 of his ruling:

“In that video recording it was clear that contrary to the unsubstantiated assertion by Mr Tsvangirai that he had only paid damages for impregnating Ms Karimatsenga out of wedlock, the ceremony was payment for roora which culminated in Mr Tsvangirai’s emissaries asking for their in-laws’ blessing to have a white wedding. The items tabulated on the list of roora tally exactly with the items mentioned in the video recording. On a balance of probabilities, the scale tips in the direction that for all intents and purposes, this was a marriage between Mr Tsvangirai and Ms Karimatsenga

After watching the video Advocate Mpofu returned with an additional affidavit from Mr Tsvangirai and in a bid to obtain the truth, I accepted that Mr Samukange and his learned colleagues consented to its admission. There are startling revelations in that statement.

Firstly Mr Tsvangirai (disowns his emissaries and alleges) that they did what he had not mandated them to do. In other words he alleges that they went and asked for Ms Karimatsenga’s hand in marriage without his consent. This is unfathomable. The delegation from his side was very big and joyous. There were large quantities of groceries that were bought and generally there was quite some merry making synonymous with a planned ceremony. I have no doubt that claiming otherwise is only a futile attempt by him to deny the obvious.”

Quite honestly I am unable to find any misdirection on the part of the magistrate’s well reasoned judgment based on sound logic and a careful analysis of the evidence before him. In the absence of the record of proceedings I am unable to ascribe any irregularity or fault in the manner in which the proceedings were conducted. The applicants having brought the matter to this court they had to provide this court with the record of proceedings in the Magistrates Court. Their failure to do so cannot be laid at the door of the respondents.

The application required the magistrate to determine the validity of the customary law union allegedly entered into between the first applicant and the second respondent. According to Story in his book Customary Law In Practice there are three essential characteristics for the creation of a valid customary law union. That is to say:

The consent of the woman, the woman’s guardian and the man.

The agreement as to the amount of lobola.

A formal handing over of the woman by the guardian.

I must hasten to point out in passing that since the enactment of the Legal Age of Majority Act 15/82 women who have attained the legal age of majority have since been emancipated by operation of law and no longer need a guardian. The consent of the guardian is therefore no longer a legal requirement for a valid customary law marriage or union. Thus the woman can now hand herself over normally accompanied by her aunt or relatives.

The applicant however, only challenged one aspect of the alleged customary law union in which he denied having paid lobola or roora for the second respondent. The magistrate’s enquiry was therefore limited to establishing whether or not the applicant paid roora as alleged.

I now turn to consider the correctness or otherwise of the magistrate’s determination on that issue.

Counsel for the applicants sought to discredit the magistrate’s reliance on the video recording saying the viewing of the video was fraught with irregularities. The video recording was however a mere visual preservation of the events of that day. Apart from the video recording there is on record Annexture “A” which purports to be a list of the roora paid by Mr Tsvangirai’s emissaries for Ms Karimatsenga’s hand in marriage according to customary law. That list duly signed by all the parties concerned has not been challenged or repudiated by anyone. It reads:

“21 November 2011

KuroorwakwaLocadia Karimatsengana Morgan Tsvangirai. (“The marriage of Locadia Karimatsenga by Morgan Tsvangirai”)

Ndiro		             $      100		Plate				$     100

Mbonano		 $      150		Familiarisation		$     150

Musikana kunhonga	 $  1  500	            The girl’s share		$   1500

Atete			 $11  000		Aunt’s share			$11 000

MuyaMusha		 $   1 500		Damages			$  1 500

Gusvi			 $      200		Clapping			$     200

Kupinda mumusha	 $      300		Home entry 			$     300

Makandinzwaani	 $      150		Who told you			$     150

Kusunungura homwe	 $      150		To open the purse		$     150

Mbariro		 $      400		Brandering			$     400

Mushonga		 $      400		Medicine 			$     400

Mapfukudzadumbu     $ 2   500		Trampling on the stomach 	$ 2  500

Rambi			 $      400		Light				$     400

Tsigiraguyo		 $      400		Balance the grinding stone 	$     400

Bikiro			 $      400		Cooking place			$     400

Chituru		 $      150		Stool				$     150

Matekenyandebvu	 $      200		Caressing the beard		$     200

Chemachinda		 $ 2   000		Court Fee		$2  000

Rusambo		$9 000	paid $600	Dowry 	$9000  paid 	$    600

Mombedzinotsika 9    3 dzinotsikadzemari $250 each 	Cattle	9  3 live for cash $250 each

Yeumaiinotsika

Muchato - Wedding		$ 150

Munyai – Go-between	………………… signed

Witness		………………… signed

Baba	-   Father	………….. ……..signed”

Undoubtedly the above payments constitute roora rather than payment of damages for impregnating a girl. While damages were inclusive in the payments the payments went far beyond mere payment of damages but roora. That being the case the presiding magistrate cannot be faulted for concluding that the first applicant is married to the second respondent according to customary law. What this means is that he cannot contract a civil marriage with any other woman without committing bigamy as defined in s 104 of the Criminal Law (Codification & Reform) Act [Cap 9:23]. That section provides that:

“104 Bigamy

(1) Any person who, being a party to:

(a) a monogamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into another marriage, whether monogamous or polygamous, with a person other than his or her spouse by the first-mentioned marriage; or

(b) an actually polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person; or

(c) a potentially polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person other than his or her spouse by the potentially polygamous marriage;

shall be guilty of bigamy and liable, if convicted in terms of:

paragraph (a), to a fine not exceeding level six or imprisonment for a period not exceeding one year or both;

paragraph (b) or (c), to a fine not exceeding level five.

(2)	 Where a person is accused of bigamy in circumstances where he or she is alleged to have purportedly entered into a monogamous marriage while being a party to an unregistered customary law marriage with another person, and the accused denies that he or she is a party to the unregistered customary law marriage, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that he or she is a party to the unregistered customary law marriage.”

Thus unlike s 3 of the Customary Marriages Act [Cap 5:7] s 104 of the Criminal Code recognises an unregistered customary law union as a marriage for purposes of the prevention and prohibition of bigamy.

It is therefore, clear and beyond question that our law criminalises and prohibits a person married in terms of an unregistered customary law marriage or union from contracting a monogamous marriage with any person other than his spouse in terms of customary law. The mere fact that s 3 of the Customary Marriages Act [Cap 5:07] does not recognise an unregistered customary law marriage as valid marriage for the purposes of bigamy is irrelevant. This is because the two statutes are not in conflict in so far as none of them legalises bigamy. Thus the presiding magistrate did not misdirect himself in any way when he ruled that authorising the first applicant to marry the second applicant in the circumstances of this case was tantamount to authorising him to commit bigamy.

It is trite that our courts do not sanction the commission of a crime. There is no need to cite any authorities for this well established rule of law but if any be required, one need look no further than CommercialFarmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC 31/10. In any case, there would be no point in authorising the celebration of a marriage that would be null and void ab initio for illegality on account of bigamy.

Apparently after having realised the futility and weakness of his case, the first applicant sought to divorce the second respondent in open court by offering a dollar note as ‘gupuro’ being a token or symbol of divorce in terms of customary law. This was ruled to be unprocedural and uncustomary. I have no doubt that the magistrate was again correct in his ruling. In any case no proof was tendered to the effect that the purported procedure for divorce was in accordance with customary law and practice.

Above all the magistrate had no jurisdiction to hear and determine the question of divorce because s 3 of the Customary Law Marriages Act does not recognise an unregistered customary law union as a marriage for purposes of divorce. In that case divorce could only take place extra-judiciary according to customary law practices and procedures as the formal courts had no role to play. This is in line with J. G. Story’s observations at p 54 of his book, Customary Law in Practice, where the learned author remarked that:

“In view of the provisions of s 3 of the African Marriages Act (Now the Customary Law Marriages Act) [Cap 238] a court has no jurisdiction to hear a divorce action in relation to an unregistered marriage because no marriage is recognised.”

Upon the lawful dissolution of an unregistered customary law union the courts can only recognise that the union has come to an end thereby releasing the couple from the shackles of s 3 of the Customary Law Marriages Act.

The court was however, not sitting to witness or determine any divorce between the two contestants but to determine whether the two were married in terms of customary law. The first applicant’s conduct in attempting to divorce the second respondent at the last minute in court in terms of customary law can only amount to an admission by conduct that he is in fact married to her in terms of customary law. For how else can a man seek to divorce a woman, unless the two are married?

It has been argued that the applicants cannot afford to have the intended marriage cancelled because the State President and other regional leaders are scheduled to attend the ceremony. It however, does not seem to matter to the judiciary that the State President and other regional dignitaries are scheduled to attend the illegal marriage ceremony. Our law is supreme; this is what the rule of law is all about. The first applicant is solely to blame for the mess he finds himself in. According to his affidavit he became aware of the disputed customary law marriage in November 2011 more than nine months ago. He had ample time to put his house in order before embarking on organising an illegal monogamous marriage ceremony with a different woman well knowing that there was another lady claiming to be married to him in terms of customary law.

In conclusion I must remark that it was remiss of counsel to refer this hopeless application to Court in the middle of the night without any prospects of success after the magistrate had delivered a water tight unassailable judgment. Had the application been opposed I would definitely have been inclined to award costs at the punitive scale upon request as an expression of this Court’s displeasure at this apparent abuse of legal process.

For the foregoing reasons the application to suspend the cancellation of the marriage licence issued to the applicants cannot succeed. It is accordingly ordered that the application be and is hereby dismissed.

Atherstone & Cook, applicant’s legal practitioners

Venturas & Samukange, 2nd respondent’s legal practitioners