Customary Law Notes

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 39

CUSTOMARY LAW NOTES

MODULE
SPECIFICATI

What is customary law?

Onyango defines customary law as, “ a human law entrenched in traditional and
psychological fabrics of human society; the oral aspect of customary law is linked
to a people’s beliefs in mysticism surrounding their nature and traditional social
world-view.”

There are two forms of customary law, i:e living customary law and official
customary law

Scholars regard official customary law as the version perceived by observers outside
the community in which the concerned norms are observed (Bennett 2009; Woodman
1969). This category embraces the customary law pronounced in court judgments,
textbooks, and codifications.

Living customary law is regarded as the norms that regulate people’s daily lives,
in

Living customary law consists of the actual practices or customs of indigenous


community whose customary law is under consideration
Bekker and Rautenbach define living customary law as the “original customs and
usages that are in a constant phase of evolvement contra-distinction with the
views of outsiders, especially legal experts (Hamnett1975)

Living customary law’s conceptualisation cannot be divorced from the


phenomenon of legal pluralism,

Living customary law consists of unwritten customary practices that regulate the
day to day life of the people

However, it does not mean that living customary law cannot be recorded in
writing. It is quite possible in principle to make written records of living customary
but provided there are no further developments to the recorded versions.

Recognition of customary law in Zimbabwe

 The preamble of the constitution -celebrates the vibrancy of our


tradition and cultures. This serves as a confirmation of traditional
institutions and legitimacy of various cultural contexts in which such
institutions can be understood.
It is important to note that the supremacy of the constitution entails that all
our customs, norms and traditions which are inconsistent and not
reflective of the values and principles in the constitution are
constitutionally invalid. If tradition and custom violate other persons’ rights
provided in the constitution they become inconsistent and therefore
invalid. The constitution recognizes the customary law but only to the
extent that it is consistent with the constitution.

 Section 46 of the constitution -states that when interpreting an


enactment and developing common law, every court, tribunal, forum, etc
must promote and be guided by the spirit and objectives of this chapter.
Take note that it calls for judicial development and not destruction of
customary law. It also calls for a balanced representation of chiefs from all
provinces in the senate and house of assembly.
 The constitution creates a hierarchical judicial system and customary
courts are included- this emphasizes the recognition of customary law
courts are at the bottom of the ladder but this must not be misinterpreted
to mean that they are less important since most people of Zimbabwe are
rural based and rely on these traditional courts for administration of
justice. Chiefs are enjoined to use customary law in resolution of
disputes.
Elements of living customary law

Acceptance- acceptance of social practices by the group is essential to the


constitution of the practices as a source of living customary law . The acceptance
does not have to be voluntary. Even if it is coercion or forced upon people that
acceptance constitutes living customary law . Acceptance creates the binding
authority

It is what people do , or what they believe ought to be done, rather than what
courts, legal experts ought to do or believe.

As pointed out by Hamnett, “ the ultimate test is not what does this judge say?
But rather what do the participants in the law regard as the rights and duties that
apply to them”

Acceptance however creates problems pertaining to authority to define


customary law. Who determines what is acceptable? The history of evolution of
customary law is evidence of the influence on the authorities ‘s agendas

If we take into account the issue of power and gender relations, these affect the
definitions of accepted norms.

There is no single person or group of persons who can define customary law.
Hamnet argues that there are intermediate corporate and semi-independent
groups that defines custom
These intermediate groups varies from place to place depending on each case
e.g geography , particular aspects e.g kugova hembe every family is left to
decide

QUESTION: What customary practices do you think applies in your area


but differs in other? Discuss with your colleagues

Custom – custom is separate from a daily practice. The difference lies in the
binding nature such that deviation from it carries sanction. Custom can be
defined as repetitive behavior or social habit motivated by a sense of obligation
among most members of the group.

Custom is different from customary law. Custom should meet the following
requirements for it to become a source of law ie custom must be long
established, reasonable , uniformly observed and certain.

Customary law is an independent and original type of law whereas custom at


common law is a practice , its not an original source of law In the Shilubana
case, the court made a distinction between custom and customary law ;” It
envisaged custom as an immemorial practice that could be regarded as filling in
normative gaps in the common law. In that sense, custom no longer serves as an
original source of law capable of independent development, but survives merely
as a useful accessory. Its continued validity is rooted in and depends on its
unbroken antiquity. By contrast, customary law is an independent and original
type of law. Like the common law it is adaptive by its very nature. By definition,
then, while change annihilates custom as a source of law, change is intrinsic to
and can be invigorating of customary law.

Customary law evolves with changing circumstances and adapts

Customary law evolves in the sense that its characteristics means that its rules
change in an unregulated manner with new rules emerging and old norms
ceasing to be observed. As pointed by Himonga and Nhlapo, the changes may
be gradual, rapid and instant depending on the economic and political changes in
the society e.g lobola payment.

QUESTION: Discuss the customary practice of payment of lobola in light of


the provisions of the Marriage bill.

Identify customary rules in Zimbabwe which have changed due to


economic, political and other factors.

Read CHAPEYAMA v MATENDE & ANOR 1999 (1) ZLR 534 (HC)

The purpose of the law is to serve the people and meet their expectations. The
need to adapt customary law to the changing social and economic conditions
either through legislation or through judicial law constantly presents itself. This
need has been recognized for quite some time. The role of the courts in adapting
customary law to take account of changing social and economic conditions has
been dealt with in a number of Zimbabwean cases. A correct balance must be
struck between judicial law-making and legislation. Where the law requires to be
revolutionized it is largely the function of Parliament to make such changes. But
where, within the framework and spirit of the existing law it is possible for the
courts to interpret it in a purposive manner and make it more appropriate to
changed circumstances, the courts will by such purposive and progressive
interpretation bring about necessary changes.

Living customary law has to be distinguished from official customary law.

Official customary law is recorded in statutes, precedent, textbooks

This customary law is divorced from the daily practices.

South African Cases

Shilubana case

It is a case of succession of chieftainship

Hosi Fofoza died, he was supposed to be succeeded by Shilubana but at that


particular time she could not because of the principle of male primogeniture,
Richard then succeeded. When Richard died, the elders appointed Ms Shilubana
but because she was still in service at Par- she allowed Hosi Richard to continue
reigning Hosi Richard acknowledged that Ms Shilubana was the heiress to the
Valoyi chieftainship. On 5 August 1997 the Royal Council accepted and
confirmed that Hosi Richard would transfer his powers to Ms Shilubana.

Hosi Richard’s son was now claiming chieftainship. His argument being that he is
the eldest son to Hosi Richard so he is entitled to succeed

Issues raised in the Shilubana case are as follows:

• in order to determine the content of a particular customary law : consider the


traditions of the community concerned, consideration of the past practice of the
community.

• consideration also focuses the enquiry on customary law in its own setting rather
than in terms of the common law paradigm

• respect the right of communities that observe systems of customary law to


develop their law

• customary law is by its nature a constantly evolving system.

• If development happens within the community, the court must strive to recognize
and give effect to that development, to the extent consistent with adequately
upholding the protection of rights.

• The legal status of customary law norms cannot depend simply on their having
been consistently applied in the past, because that is a test which any new
development must necessarily fail. Development implies some departure from
past practice.

This is not to say that past practice is not relevant. Past practice and tradition
may well be of considerable importance in customary law, but as one important
factor to be considered with other important factors. It is also not to say that
customary law must in the ordinary course be proven before a court before it can
be relied upon.
The actions of the royal family reflected in the appointment of Ms Shilubana,
accordingly represent a development of customary law.

However, customary law is living law and will in future inevitably be interpreted,
applied and, when necessary, amended or developed by the community itself or
by the courts. This will be done in view of existing customs and traditions,
previous circumstances and practical needs, and of course the demands of the
Constitution as the supreme law.

Bhe Case

The Bhe case dealt with the issue of interstate succession of property by children
born out of wedlock

Shibi case dealt with the primogeniture rule- Ms shibi was the only surviving
sister of the deceased. The deceased was single, and had no children, parents
or grandparents. There were also cousins to the deceased,

In the case of South African Human Rights Commission and Another v


President of the Republic of South Africa and Another, the commission and
another NGO acting in the public interest, sought an order to declare the
provisions of section 23 to be ultra vires the constitution

Concept of primogeniture was explained in the Bhe case. The general rule is that
only a male who is related to the deceased qualifies as intestate heir. Women do
not participate in the intestate succession of deceased estates. In a
monogamous family, the eldest son of the family head is his heir. If the deceased
is not survived by any male descendants, his father succeeds him. If his father
also does not survive him, an heir is sought among the father’s male
descendants related to him through the male line

In Bhe case – the court explained the concept of primogeniture- the purpose that
it served, the living arrangements at the time, heir would have the common
intrests – now its not possible to stay at the same place due to urbanization
therefore that concept need to adapt to circumstances the Bhe case highlights
the problem of official customary law

Main judgement - Customary law has, in my view, been distorted in a manner


that emphasizes its patriarchal features and minimizes its communitarian ones

He holds that while it would ordinarily be desirable for courts to develop new
rules of African customary law to reflect the living customary law and bring
customary law in line with the Constitution, that remedy is not feasible in this
matter, given the fact that the rule of male primogeniture is fundamental to
customary law and not replaceable on a case-by-case basis. However, he holds
that an interim regime to regulate the intestate succession of black persons is
necessary until the legislature is able to provide a lasting solution.

Main judgement – Langa He holds that while it would ordinarily be desirable for
courts to develop new rules of African customary law to reflect the living
customary law and bring customary law in line with the Constitution, that remedy
is not feasible in this matter, given the fact that the rule of male primogeniture is
fundamental to customary law and not replaceable on a case-by-case basis.

Dissenting judgement Ngcobo J, also held that courts have an obligation under
the Constitution to develop indigenous law so as to bring it in line with the rights
in the Bill of Rights, in particular, the right to equality. He holds therefore that the
principle of primogeniture should not be struck down but instead should be
developed so as to be brought in line with the right to equality, by allowing
women to succeed to the deceased as well.

Zimbabwean cases

Katekwe v Muchabaiwa

Majority status conferred by LAMA on women. Question was whether or not a


father can claim seduction damages for his major daughter. The court held that
the father is no longer entitled to that in respect of the major daughter but can still
claim for a minor daughter. The major daughter can now claim seduction
damages for herself under general law.

Another emphasis was on payment of lobola, the court held that a Zimbabwean
female who is a major can now contract a valid marriage without parental
consent. The emphasis is that if the father has lost his legal right to claim lobola
for a daughter upon attaining majority status, the whole purpose underlying the
action for seduction falls away. Consequently, there can be no impairment of a
non-existing right

Chihowa v Mangwende S-84-87

The court held that the woman who has reached the age of majority can succeed
her father who has died intestate. Based its decision on the Zimbabwe legal age
of majority Act which it concliuded that it supersedes the customary law
prescribing that intestate inheritance is through the male line only.

Mwazozo v Mwazozo S-121-94

Reversed the decision in Chihowa v Mangwende that a daughter cannot inherit


from a father who has died intestate

Vareta v Vareta S-126-90

Magaya v Magaya S-210-98

Timbe v The Ngnidzashe Family Trust HH- 10-2009

Legal pluralism, conflict of laws and application of customary law in


Zimbabwean
When one thinks of conflict, it denotes either warfare or struggle. However when it
comes to the law, conflict denotes a dispute about applicability of either two or more
systems of laws.

Internal conflict refers to conflict within a country between two or more systems and
external conflict refers 2 disputes between two systems of two or more countries-
Private international law. Welshman Ncube covers it well and so does Dr Galen in the
Zimbabwe Law Review Vol 1 and 2 1983 - 4.

In order to understand the application of customary law, there is a need to understand


the concept of legal pluralism because customary law operate within the broader
framework of legal systems.

Legal pluralism it is a state of affairs where various legal system are observed e.g
common law and customary law. Legal pluralism has also been described as a
condition in which a population observes more than one body of law –Woodman “the
idea of legal Pluralism in Duepret, B, Berger, M, and Alzwaini, L (1999) et al legal
pluralism in the Arab World 3

Van Niekerk, (2010) in Bekker, Rautenbach and Goolman ( eds) Introduction to


legal pluralism in South Africa “ legal pluralism refers to two or more legal
systems or normative texts that may or may not be recognized as strictly legal
systems but that nevertheless co-exist.

N.B They should have sufficient authority to direct people’s behavior and make
them feel that they ought to do something in accordance with established norms
whether explicit or not.

Himonga and Nhlapo identifies the following as concepts of a legal pluralism:

Weak legal pluralism and strong legal pluralism

a) Weak legal pluralism – this is the recognition and regulation by the state of a
plurality of legal orders or systems.
This legal pluralism supports state centralism because it still centralizes the role
of the state in legitimizing law. It consists of common law, legislation, judicial
precedent.

The constitution is part of state centralism because of the supremacy

QUESTION: Is living customary law part of weak legal pluralism?

How then is state pluralism applied in case law- choice of law becomes relevant.

b) Deep legal pluralism – this legal pluralism recognizes the multiple normative
orders that coexist with the law. They can even emanate from different source of
authority
This deep pluralism has also been described by Moore as the semi-autonomous
fields. Moore places emphasis in law in society than law and society

The concept acknowledges that apart from state regulation, there are other
societal norms agencies that regulate human conduct.

The semi-autonomous fields regulate rules and customs but also it is also
vulnerable to rules and decisions and forces within. As pointed by Himonga and
Nhlapo while, weak legal pluralism is the formal rule, reality is more akin to
strong legal pluralism.

State laws are just another source of law among semi-autonomous social fields
that exert authority on individuals. Because of plurality of laws, there comes a
time when there is conflict of laws.

Conflict of laws refers to the rules of choosing an appropriate law. It does not
refer to conflict between legal systems. It is about the dispute on applicability of
either of two or more systems of law. The rules are called conflict of law rules –
they indicate the circumstances the rationale for using a legal system where the
dominant one is not the only applicable dominant one being general law.

Conflict of laws is applicable in two scenarios


a) Conflict between rules belonging to legal systems of two different countries.
This constitutes an external conflict of law. It is called a conflict of private
international law. Rules applicable in this regard is the private international law.

Private international law in the sense that customary law is part of private law

Considerations in this case would be where cause of action arose, if its marriage
the domicile of the husband

c) Conflict between legal systems operating within a single national legal system.
The rules applicable in this case is the internal conflict of laws. This is the one
that we are more interested in under this course.
HISTORICAL CONTEXT

In public law areas like criminal and constitutional law, all people were subject to
the same laws. In private law however, the situation was different. Race became
the determining factor in the area of family law.
For a while, customary law was permitted to run side by side with general law based on
the race criteria. Problems arose however when the Africans became assimilated in the
European way of life, they contracted marriages in terms of civil rights e.t.c.

The Constitution of Zimbabwe makes statute law override common law. It also
makes the application of general law subject to any statute on the application of
customary law.
Provisions of section 3 of the Customary Law and Local Courts Act provide guidelines.
This act puts general law and customary law at par hence we have a dual system of law.
It abolished race as a criteria but uses social class and position of individual litigants.
This section came into effect on the 1st of November 1997 and repealed the customary
law application act in which the choice of law criteria was set out.

If a particular issue is dealt with in terms of any enactment / statute then the
statute takes precedent.

General principles in determining choice of law


a) Agreement and intention- courts respect the choice subject to the fact that it
does not prejudice the interests of third parties section 8 of the customary law
and local courts Act “any case where customary law is applicable and the parties
are connected with different systems of customary law, the court shall apply the
customary law by which the parties have agreed that their obligations should be
regulated or, in the absence of such agreement, the customary law with which
the case and the parties have the closest connection and if that is not
ascertainable, the court shall apply any system of customary law which the court
considers it would be just and fair to apply in the determination of the case.”

b) Nature of transaction - eg, lobola payments Read Lopez vs Nxumalo

c) Justice of the case -In addition to the above factors the courts can assess if
the justice of the case dictates that customary law be applied– in Mautsa Case
Chitakunye J held that the court is also vested with the discretion to determine
whether or not the justice of the case demands that general law or customary law
should apply.

In Jengwa v Jengwa 1999(2) ZLR 121(H) Gillespie J had occasion to consider


the plight of women in unregistered customary law unions at the termination of
such union. At p 130B-G he opined that: “The road to an equitable division of
marital property in a customary union might take this route. Whenever immovable
property is involved, a finding might be made that the general law applies, since
custom, as it is presently understood, recognizes no ownership in immovables.’’

Analyze the following provision

Customary law and local courts Act

Section 3 of the Customary Law and Local Courts Act: came into effect from 1st
November 1997.

3 Application of customary law


(1) Subject to this Act and any other enactment, unless the justice of the case otherwise
requires—
(a) customary law shall apply in any civil case where—

(i) the parties have expressly agreed that it should apply; or


(ii) regard being had to the nature of the case and the surrounding circumstances, it
appears that the
parties have agreed it should apply; or
(iii) regard being had to the nature of the case and the surrounding circumstances, it
appears just and
proper that it should apply;

(b) the general law of Zimbabwe shall apply in all 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;
(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 the customary law or the
general law of
Zimbabwe, as the case may be.

1) the parties have expressly agreed that it should apply; if the parties fail to
agree the court then decide which law is applicable taking into account the
circumstances - According to Ncube, parties cannot agree to the application of
customary law where an applicable statutory provisions governs the dispute
since the agreement of the parties is subject to the existence to any enactment- (
child marriage yet section 70 prohibits sexual intercourse with a young person)

2) Where it appears regard to the circumstances it appears that parties have


agreed that customary law should apply

This happens in cases where plaintiff chooses a particular system of law and
defendant does not object- court need to enquire if Defendant is fully aware of
the choice of law by Plaintiff the determining factor would be the circumstances
of the parties or cases

3) where it appears just and proper that customary law should apply;

Burden of proof as to the non- applicability lies on the party claiming that general
law should govern the dispute so normally it’s the defendant

If it is at the lower courts eg. chiefs’ court, the dispute might be on jurisdiction so
the defendant can argue that customary law does not apply as chiefs do not have
jurisdiction to hear criminal cases.

See MATIBIRI v KUMIRE 2000 (1) ZLR 492 (HC) at if the application of
customary law does not conduce to the attainment of justice, the common law
should apply

See also the case MTUDA v NDUDZO 2000 (1) ZLR 710 (HC) –the court applied
general law principle of unjust enrichment despite the fact that the matter was based
on an unregistered customary law union

4) surrounding circumstances', in relation to a case, shall, without limiting the


expression, include-

(a) the mode of life of the parties; this includes lifestyle, cultural habits, e.g
kurova guva, bira, (see the case of Mautsa vs Kurebgaseka HH 106-17 general
law should apply as the parties maintained a western lifestyle and were not
governed by African custom and practice. In that regard, the defendant
contended, inter alia, that:-

The parties lived in the low-density suburb of Mandara;

The plaintiff was a businessman who was in the business of farming;

The defendant was a housewife who also worked at the family farm;

The parties were blessed with four children who all attend or attended private
schools where they are taught and live a western lifestyle;
The parties would go on holidays and shopping trips during the weekends and
holidays.

In addition to the above factors the courts can assess if the justice of the case –
in Mautsa Case Chitakunye J held that the court is also vested with the
discretion to determine whether or not the justice of the case demands that
general law or customary law should apply.

Conflicts between internal customary systems eg. ndebele and shona tribes

Agreement- the customary law that parties agree to

The customary law in which the parties have the closest connection

Customary law which the court considers to be just and fair section 8 of the
customary law and local courts Act

Status of customary law visa vis constitutional provisions

State centralism – section 2 and 3 of the Constitution emphasizes on supremacy


of the Constitution any practice , custom or conduct inconsistent with the con is
invalid to the extent of inconsistency

Section 16 of the Constitution state to promote and protect cultural values and
practices which enhance the dignity, well- being and equality of Zimbabweans

Section 63 right to participate in cultural life but subject to the provisions of the
constitution

SEDUCTION
Question = what is to seduce?
Leading astray of whom, by who to where?
Definition of seduction: When a man has sexual intercourse with an unmarried
woman WITH HER CONSENT. Woman parts with her virtue at the solicitation of a
man.
SEDUCTION UNDER CUSTOMARY LAW
Under customary law, the delict of seduction is committed not against the woman but
against the father or the guardian when the seducer has sexual intercourse with the
unmarried woman without consent of the father or the guardian. (Machokoto)
NB* (Does this mean that if father/guardian consents to the sexual intercourse of a
daughter who is say 17 years of age, then that is not rape even if the daughter does not
want?)
 Virginity is not a requirement under customary law

 Seducer still liable even if he offers to pay lobola. In the olden days there was
talk of DAMAGE so seducer must first pay the damages before lobola. These are
two different payments.

 Damages are based on the assumption that seduction diminishes the woman's
chances of marriage and the amount of lobola that a man would pay (Is this
true?). The guardian/father is compensated for loss and any other loss he may
incur from the seducers act.(Katekwe)

THE LEGAL AGE OF MAJORITY ACT 15/82 (NOW PART OF THE GENERAL LAWS
AMENDMENT ACT)

LAMA AND ITS EFFECT ON SEDUCTION (now contained in the GLAAct)


15 Reduction of age of majority from 21 to 18 years
(1) On and after the 10th December, 1982, a person shall attain the legal age of
majority on attaining
eighteen years of age.
(2) A person who immediately before the 10th December, 1982, 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) Subsections (1) and (2) shall apply for the purpose of any law, including customary
laws 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 10th December,
1982; and
(b) any deed, will or other instrument of whatever nature made on or after that date.
(4) This section shall not affect the construction of any such expression as is referred to
in subsection (3) in
any enactment relating to taxation or pensions.
(5) Nothing in this section shall be deemed to prevent any person attaining his or her
majority by operation of
law earlier than on attaining eighteen years of age.
In Katekwe - vs. - Muchabaiwa: The SC ruled that as a result of LAMA, the father/
guardians have lost the right to sue for seduction for daughters who are majors at the
time of seduction. Under customary law, the delict is only available to the
father/guardian if the daughter is a minor at the time of seduction.
REQUIREMENTS:
 Proof of sexual intercourse between the girl and the man

 minority status of the girl at the time of seduction

 sexual intercourse without the guardian's consent


Evidence of overt (evident) sexual interest raises the presumption of sexual intercourse.
There is no requirement for corroboration. The evidence of a single witness will suffice.
QUANTUM OF DAMAGES
 If girl was a virgin this increases the damages. Virginity is presumed until the
contrary is shown.

 Age and character of the girl

 Whether pregnancy occurred- If it did then damages increase

 Social standing of the parties

 Number of times sexual intercourse took place

 If there was a relationship of trust between girl and seducer e.g. teacher / pupil

 Girls previous conduct e.g. immorality or pregnancy by other man

CLOSER ANALYSIS OF LAMA


LAMA attracted controversy with some people even blaming it for the 1982 drought. It
was seen especially in male quarters and even by some women as a ticket to
promiscuity and loss of respect by kids of their parents.
Such was the outcry that in 1984, the government came up with a proposed legal age of
majority act amendment of 1984 which has since died a natural death. The proposed
amendment was to the effect that notwithstanding the provisions of LAMA, a person
who would in terms of customary law be regarded as a guardian of a woman should be
entitled to claim lobola in respect of the marriage. The amendment also sought to give
the person who would have been the guardian of the woman at customary law the right
to claim seduction damages.
The proposed amendments would have effectively returned African women to a quasi-
perpetual minority status. The woman who was 18 years for example could marry
without the consent of the guardian but required consent to have sexual intercourse with
the man before marriage ( In those days there were no cell phones so woman would
have to board a bus to seek permission and by the time she went back, the man would
have lost interest)
One of the leading texts on seduction is by Van Den Heever and he basically reiterates
the three requisites of seduction under general law:
 That the woman has been seduced

 There has been sexual intercourse

 The woman was a virgin at the time of seduction


- (laid out in Machokoto vs. Mabika)

(Discuss the effect of Magaya vs. Magaya on seduction. See the article by Ellen Sithole
in the legal forum. The underlying issue is that views expressed by Muchechetere were
obiter dictum) Issue can be debated

CUSTOMARY LAW PATERNITY


CHILDREN BORN IN WEDLOCK
- Children born in African customary law are presumed to be the children of the man
woman is married to (Gomba harina mwana). An adulterer has no right to children born
to his married lover even if he can prove that he is the father.
Colonial courts took the view that the resolution of paternity disputes under customary
law should be dealt with in terms of Roman Dutch Law.

OUT OF WEDLOCK CHILDREN


Under customary law, the father of a child born out of wedlock had no duty to maintain
the child and had no rights of guardianship or custody over the child. Duty of
maintenance fell on guardian of the child's mother.
If man paid chiredzwa/ amalobolo omntwana/isihlengo then if this was accepted, the
rights of guardianship and custody given to the man
(Discuss the issue of Chiredzwa)
Customary law- No clearly developed rules determining customary law on children born
out of wedlock. If the man pointed out as father refused paternity, then this was never
followed through.
Seduction: Question arose of which man impregnated an unmarried woman. If in
action for seduction damages, D was also found to have been responsible for
impregnating seduced woman, quantum increased of damages so courts had to
determine paternity of children in connection with seduction claims.
* Now in terms of the Maintenance Act - father of child is primarily responsible for the
maintenance of the child- so paternity under customary law must be first established
before maintenance can be paid. Still Roman Dutch Principles apply.

LYING IN EXPENSES
During pregnancy and immediately after the birth of child, a woman may incur expenses
in respect of the pregnancy.
Under both general and customary law, a mother of a child born out of wedlock is
entitled to recover lying in expenses from the father of the child.
Can be included in seduction damages claim.
Lying in expenses can only be claimed after the birth of the child.
Maintenance of the woman can also fall under lying in expenses i.e. maintenance
during pregnancy.
Money need not be equivalent to the mother's loss of earnings during this period.
Lying in expenses can include:
 maternity home expenses

 medical expenses

 maternity clothing

 clothing and food for the child


In other cases Card - vs. - Sparg: not entitled to claim from the defendant a refund of
the expenses she has incurred in respect of her own person such as maternity wear
and toiletries.
Lying in expenses are primarily for the benefit of the children.
Adulterine children: Section 14 of the General Laws Amendment Act. They become
legitimate if parents subsequently marry
14 Legitimation of adulterine children
Where the father or mother of an illegitimate person was married to a third person when
the illegitimate
person was born, and the parents of the illegitimate person marry or have married one
another after the birth of
that person, the marriage shall render that person, if living, legitimate from the date of
that person's birth
CUSTOMARY LAW
Where a woman claims maintenance for her illegitimate child, an admission of
intercourse by the man indicated by the woman as being the father of the child creates
a presumption that he is the father and it places an onus on him to prove that he cannot
be the father. Proof by the man on a balance of probabilities will suffice to rebut the
presumption. The proof must relate to a total impossibility that he could be the father of
the child. Even if there is no admission by the man of intercourse, as a matter of law
evidence of the mother does not require corroboration in paternity or seduction

LEGITIMACY UNDER CUSTOMARY LAW


Two distinct concepts apply:
 Parental rights and duties towards a child - custody, maintain and protect child,
right to receive lobola or pay lobola.

 Patrilineage - succeed to the father's name and genealogy


Children born of lawfully married persons are legitimate. Husband has rights of
guardianship, custody , maintenance( primarily ) .
Pre-marital children - illegitimate in relation to their father who had no rights of custody
or guardianship. These were vested in the guardian of the mother but this changed due
to LAMA. Now the father has a duty to maintain children. Under customary law such
children can be legitimated by payment of chiredzwa/ amalobolo omtwana. This money
must be accepted by the woman's father/ guardian and the natural father then acquires
rights of guardianship and children become legitimate under customary law.
Adulterine children - : They are presumed to be children of the man their mother is
married to until the adulterer comes forward and pays maputiro and acknowledges the
children as his. Maputiro is some form of compensation and if husband accepts, the
adulterer becomes entitled to the guardianship and custody of the adulterine child.

Section 14 of the G.L.A.Act, also applies to customary law situations... ” Where the
father or mother of an illegitimate person was married to a third person when the
illegitimate person was born and the parents of the illegitimate person marry or have
married one another after the birth of that person, the marriage shall render that person,
if living, legitimate from the date of that person's birth.”

LEGITIMACY UNDER CUSTOMARY LAW


Two distinct concepts apply:
 Parental rights and duties towards a child - custody, maintain and protect child,
right to receive lobola or pay lobola.

 Patrilineage - succeed to the father's name and genealogy


Children born of lawfully married persons are legitimate. Husband has rights of
guardianship, custody , maintenance( primarily ) .
Pre-marital children - illegitimate in relation to their father who had no rights of custody
or guardianship. These were vested in the guardian of the mother but this changed due
to LAMA. Now the father has a duty to maintain children. Under customary law such
children can be legitimated by payment of chiredzwa/ amalobolo omtwana. This money
must be accepted by the woman's father/ guardian and the natural father then acquires
rights of guardianship and children become legitimate under customary law.
Adulterine children - : They are presumed to be children of the man their mother is
married to until the adulterer comes forward and pays maputiro and acknowledges the
children as his. Maputiro is some form of compensation and if husband accepts, the
adulterer becomes entitled to the guardianship and custody of the adulterine child.

Section 14 of the G.L.A.Act, also applies to customary law situations... ” Where the
father or mother of an illegitimate person was married to a third person when the
illegitimate person was born and the parents of the illegitimate person marry or have
married one another after the birth of that person, the marriage shall render that person,
if living, legitimate from the date of that person's birth.”
GUARDIANSHIP, CUSTODY AND ACCESS

CONCEPT OF GUARDIANSHIP, CUSTODY AND ACCESS


There is often confusion on the aspects of guardianship and custody. From the onset it
should be clear that the two concepts mean different things. One parent can have
custody whilst the other has guardianship or one parent can have both especially when
parties divorce or separate.
Hahlo -” Guardianship in its widest sense includes custody and embraces the care and
control of the minor's person as well as the administration of his property and business
affairs. Where custody and guardianship are separated, the custodian parent has the
care and control of the minor's person , while the guardian parent administers his
property and business affairs (guardianship) in the narrower sense "
We have this form of guardianship that can only apply when married parents are living
together as a single family.
Guardianship and custody take on a specific meaning when parties are separated or
divorced . Guardianship will then be limited to assisting the child its the admin of
business affairs or performing juristic acts e.g. if a child is knocked down by a car the
guardian will if the child is under seven years represent the child and if above seven
years assist the child in suing for damages. The child is clothed with legal capacity
through the guardian .
Custody on the other hand refers to the physical care and control of the child- regulating
the life of the child, choosing its residence, choosing with whom child should associate,
deciding on matters of religion, choice of school e.t.c.
Sole guardianship and custody were created by the Guardianship of Minors Act.
Section 4 of the Act- What can sole guardian do?
4 Guardianship and custody of minors
(1) The High Court or a judge thereof may—
(a) on the application of either parent of a minor in proceedings for divorce or judicial
separation in which
an order for divorce or judicial separation is granted; or
(b) on the application of either parent of a minor whose parents are divorced or are
living apart; if it is proved that it would be in the interests of the minor to do so, grant to
either parent the sole guardianship, which shall include the power to consent to a
marriage, or sole custody of the minor, or order that on the predecease(to die b4 some1
else) of the parent named in the order, a person other than the survivor shall be the
guardian of the minor, to the exclusion of the survivor or otherwise.
(2) An order under subsection (1) granting the sole guardianship or custody of a minor
whose parents are living apart to a parent shall, if the parents become reconciled and
live together again as husband and wife, lapse with effect from the date on which the
parents commence to live together again.
(3) Subject to any order of court—
(a) a parent to whom the sole guardianship or custody of a minor has been granted
under subsection (1)
may, by testamentary disposition, appoint any person to be the sole guardian or to be
vested with the
sole custody of the minor, as the case may be;
(b) a parent who has the sole custody of a minor in terms of subsection (1) of section
five or by virtue of any
order made in terms of that section may, by testamentary disposition, appoint any
person to be vested
with the sole custody of the minor;
(c) the father of a minor to whom the sole guardianship of the minor has not been
granted under subsection
(1) shall not be entitled by testamentary disposition to appoint any person as the
guardian of the minor in any other manner than to act jointly with the mother.
(4) Where the mother and a testamentary guardian of a minor act as joint guardians and
they are unable to
agree on any question affecting the welfare of the minor, the wishes of the mother on
that question shall prevail:
Provided that the testamentary guardian, if he is of the opinion that the life, health or
morals of the minor may
be affected to his detriment, may apply to the High Court for directions, and the court
may make such order
regarding the matters in difference as it may think proper.
(5) The High Court or a judge thereof may—
(a) where a parent has appointed a guardian or custodian as provided in paragraph (a)
or (b) of subsection (3); or
(b) where a guardian has been appointed to a minor by the father to act jointly with the
mother;
upon the application of the other parent or of the guardian or mother, as the case may
be, made after the death of the testator, make such order in regard to the guardianship
or custody of the minor as the court or judge may consider to be in the best interests of
the minor.
(6) A disposition made by a parent in terms of paragraph (a) or (b) of subsection (3)
shall cease to be of any
effect if during his lifetime that parent ceases to be the sole guardian or, as the case
may be, is no longer vested
with the custody of the minor concerned.
(7) A wife may make any application referred to in this section, and any application to a
court in connection therewith, without the assistance of her husband.

GUARDIANSHIP OF ILLEGITIMATE CHILDREN UNDER CUSTOMARY LAW


A child born out of wedlock- father has no claim to guardianship which is vested in the
guardian of the unmarried mother. The natural father can pay chiredzwa or amalobolo
omtwana to the guardian the latter having an unfettered discretion to reject or accept
the payment.
Has LAMA changed this position? The basis of giving guardianship to the guardian of
the mother of the child was based on the premise that women were perpetual minors.
With LAMA women acquired majority age at 18 years so it would seem that when a
woman reaches 18 years and having had a child out of wedlock, she becomes the
guardian of the child also bearing in mind that the woman herself has no guardian. Even
paying chiredzwa will not alter this position (What if father has accepted chiredzwa and
the woman turns 18 years and wants her child back?) - This is a moot point.

CUSTODY AND ACCESS TO ILLEGITIMATE CHILDREN UNDER CUSTOMARY


LAW
As a general rule under customary law the position was that the natural father of an
illegitimate child had no right of custody to the child which custody vested in the
guardian of the mother of the child. The natural father could pay chiredzwa or
amalobolo omtwana to acquire custody of the child.
This would seem to have changed with LAMA because now the major mother does not
herself have a guardian any more.
Be that as it may, the prime consideration in any custody dispute is the best interests of
the child concept as per section 5 of the Customary law and local Courts Act.

5 Interests of children paramount


In any case relating to the custody or guardianship of children, the interests of the
children concerned shall be the paramount consideration, irrespective of which law or
principle is applied.
This does not mean that the natural father has right to claim custody of child under
customary law. His right is no more than that of a third party and he must prove that
there are strong and compelling grounds to give custody to him.
The question of access never arose because the father had no right of custody unless
he paid chiredzwa and as a result under customary law, the father of an illegitimate
child has no inherent rights of access to his child
GUARDIANSHIP OF LEGITIMATE CHILDREN UNDER CUSTOMARY LAW
This applies to children born under a registered customary law union or UCLU.
Does the act apply in these situations ?
During the colonial period , the Act did not apply to Africans. There are conflicting view .
Dr Galen thinks that it probably does not apply but Mary Maboreke came to the
conclusion that it applies.
The Act however does not apply to UCLU. However in terms of section 3( 5 ) of the
Customary marriages Act, an invalid marriage such as an UCLU shall be regarded as
valid for purposes of custody, Guardianship and access. This is only under customary
law.
Notwithstanding the law that is in question , in terms of the Customary Law and Local
Courts Act, the paramount consideration now is the best interests of the child concept.
In terms of customary law , the father is the natural guardian of all children born during a
marriage provided lobola has been paid. If no lobola has been paid, the guardian of the
mother of the children has those rights. However because of LAMA now women are
majors at 18 so they can become guardians of their children.

THE CONVENTION ON THE RIGHTS OF THE CHILD( Refer to Convention, Article


by Victor Nkiwane and chapters from Child And Law In East And Southern
Africa )
MAINTENANCE
CHILDREN BORN OUT OF WEDLOCK UNDER CUSTOMARY LAW
Under traditional customary law the father of a child born out of wedlock had no
responsibility to maintain his child unless he obtained custody. We have already
discussed the ways in which the father can get custody . Colonial courts took view that
such a father was not a responsible person for purposes of the Maintenance act .
However in terms of Section 6 ( 3 ) ( b) : For purposes of determining whether or not a
person who is subject to customary law is legally liable to maintain another person , the
court shall regard the parents of the child as being primarily and jointly responsible for
the maintenance of that child until the child turns 18 or becomes self supporting.
Therefore the parents under customary law are primarily responsible for looking after
the children .

MAINTENANCE UNDER CUSTOMARY LAW


Before the coming into effect of the customary law and local courts act, all maintenance
claims under customary law were dealt with at the community court.
Section 6 (3 ) deals with who is liable under customary law for maintenance and the
parents are primarily responsible for this.
ARREAR MAINTENANCE
In the Musakwa case the Supreme court came to the conclusion that arrear
maintenance was not claimable if there was no prior maintenance order in existence. It
is submitted that the SC ignored section 6 ( 6)(C ) which allows the court to make an
award of arrear maintenance. If there is in existence a maintenance order it can be
enforced by any of the ways set out in the act.
RD common law recognised claims for arrear maintenance see Woodhead case and
also P vs. C.
The decision in Musakwa was wrong.
It has now been overridden in respect of children born in wedlock by Section 11 ( 1 ) of
the Matrimonial causes Act.
HOW IS THE MAINTENANCE ASSESSED ?
The amount is assessed according to the means of the parties . The parties should be
candid with the court and furnish their income and expenditure. The party who is making
the claim furnishes the court with a list of expenses which is only an estimate .
The court shall have regard to the factors set out in section 6 ( 4 ) .
The classic case and the leading case is the Gwachiwa vs Gwachiwa case which has
led to what is commonly known as the Gwachiwa formula.
This was an arithmetic formula that the court applied .
Gwachiwa formula: Allocate equal shares of income to each parent and half a share to
each child. 2 shares for husband, two shares for wife and one share for child to make a
total of five shares . So hubby gets 2/5 wife 2/5 and child 1/5.
Practically it works as follows:
 Ascertain and add together the total net income of the father's household and the
mother's household. The total gives the total money available per month.

 Calculate what claims there are on that income by allocating two shares each to
each adult in the two households and one share to each child in each of the two
household.

 Divide the total amount available each month by the total number of shares. One
share will be a child's share and two shares will represent an adult share.

 Calculate how much money ( if any ) should be paid by the father to the mother
as maintenance in order to ensure that the child who is the subject matter of the
dispute receives a child's share.

 Adjust the figures arrived at in step four up or down to allow for innumerable
variable factors and special features which may arise in the case under
consideration.
T The fault factor should not be taken into account. The Gwachiwa formula is only a
starting point and the maintenance can be adjusted upwards or downwards depending
on the circumstances . In some cases it may not even be suitable as a starting point.

Problem that courts face is that many respondents bring fake payslips or proof of
income and Magistrates do not invoke section 13 and 14. Some complainants also
exaggerate their claims in the belief that the court will reduce the figure anyway so why
not claim a higher figure in the first place.
MARRIAGE AND THE LAW
TYPES OF MARRIAGE IN ZIMBABWE
 Monogamous marriage under the Marriage Act Chapter 5: 11

 Potentially polygnous marriage under the Customary Marriages Act Chapter 5:


07

 Unregistered customary law union


MARRIAGES ACT
 Marriage can only be between Africans - see definition section

 Governed by customary law unless there are compelling reasons to the contrary

 Potentially polygynous marriage


UNREGISTERED CUSTOMARY LAW UNION
 Invalid marriage except for certain limited purposes. Meets all requirements of an
African marriage except registration - Section 3 ( 1 ) of the customary marriages
act

 Valid for the purposes of guardianship, status of children, custody , inheritance


under customary law - Section 3 (5 ) Customary marriages act. Chn born under
this union enjoy the same rights as children born under registered customary law
marriage. For purposes of customary law such chn presumed to be legitimate
and falling under the guardianship of their father.

 Regarded as valid for purposes of maintenance of wife - Maintenance Act

 Husband can now recover damages from his wife’s seducer through case law-
Carmichel vs Moyo case

 There is no divorce since parties are not marries to each other

 Wife’s father cannot sue for lobola unless husband agreed to pay lobola and
defaulted .
EFFECTS OF LAMA ON CUSTOMARY MARRIAGES
Before LAMA came into force the requirements of a customary law union were as
follows:
 Intending spouses must agree or consent to marry each other

 the guardian of the woman must consent to the marriage

 the intending husband and the guardian of the woman must reach an agreement
as to lobola payments

 there must be a formal hand over of the woman by her guardian .


Because of LAMA , a woman reaches the age of majority at 18 years and since she will
be considered as having no guardian , she has unrestricted freedom to marry. An
agreement as to roora is no longer a legal requirement under customary law for a
woman who is 18 years old.

COHABITING
Cohabiting is when a man and woman stay together without registering marriage or
without lobola having been paid.
Because of LAMA , three of the essentials of a customary law union have been done
away but the consent of the parties is still required. Does that mean that if two adults
governed by customary law who agree to stay together as man and wife qualify as an
unregistered customary law union ? ( What do the students think )
Public policy would seem to militate against such unions being declared valid. They are
just as good as kubika mapoto.

FORMALITIES UNDER THE CUSTOMARY MARRIAGES ACT


 Marriage solemnised only by a Customary marriage officer - Section 2
Interpretation of marriage officer

 Two witnesses who are majors are required.

 No requirement to publish notice of intention to marry or get marriage licence but


regulations by Ministry of Justice require parties to publish notice of intention to
marry. Notice to be displayed for four weeks. Parties may obtain a special licence
to be issued only in exceptional circumstances.

 Regulations do not have force of law because they have not been promulgated
but parties intending to marry must comply with them.

 Section 7 provides the circumstances under which marriage officer can marry a
couple. Section 7 ( 1 ) (a ) on marriage consideration ( lobola ) and section 7 ( 1)
( c ) on consent of the guardian have been done away with by implication due to
LAMA if woman is over 18 years.
ADULTERY UNDER A CUSTOMARY LAW UNION

Carmichael vs. Moyo 1994 ( 2 ) ZLR 176


A husband in an UCLU recognised by customary law has a legal right to sue in a court
administering customary law for adultery committed with his spouse . Although section 3
( 1 ) of the African Marriages Act cap 238 provides that no marriage contracted
according to customary law is valid unless it is solemnise in terms of that act, the effect
of legislation introduced in 1970 was to restore the husband's right to sue in customary
law for adultery damages even though the marriage is not solemnised in terms of the
act.
This legislation was the African law and Tribal courts Act 24/ 69 which became cap 237.
The decision by the court in Maso vs Nyamusu Zhaikwakinyu 1971 AAC 1 that a
husband cannot sue for adultery because his marriage was unsolemnised is invalid and
overlooked the change introduced in 1970 and is therefore an incorrect decision. The
change in 1970 was also overlooked by Goldin and Gelfand in their book African law
and custom in Zimbabwe in their assertion at 216 that a husband cannot sue for
adultery damages if the marriage is unsolemnised.
The African and Tribal Courts Act was replaced by the customary law and primary
courts Act 6/81. Subsequently the customary law and primary courts Act was replaced
by the customary law and local courts Act 2/90. Correctly interpreted both the
customary law and primary courts Act and the Customary Law and local Courts Act
maintained the right of the husband in an unsolemnised customary law union to sue in
customary law for adultery damages. One important consideration in reaching the
conclusion is that if a husband in an unsolemnised or UCLU is primarily responsible for
the maintenance of his wife, customary law courts must recognise the correlative right
of the husband to claim damages for adultery.

ADULTERY UNDER CUSTOMARY LAW MARRIAGE


Mukono vs. Gwenzi 1991 ( 1 ) ZLR 119
A woman who was over the age of 18 married a man in terms of the customary
marriages act. The wife had successfully claimed damages against a woman who had
committed adultery with her husband. On appeal :
Held: A customary marriage under the customary marriages Act is potentially
polygamous whereas a marriage under the Marriage Act is monogamous. The two
types of marriage are different and confer different rights and obligations upon parties to
the marriage. The parties can only enjoy the rights and obligations upon the parties to
the marriage . The parties can only enjoy under the type of marriage they have chosen .
When a woman opts to enter into a customary law marriage, she must be taken to have
been fully aware of the rights available to her under that type of marriage.
Held: Under customary law a married woman is not entitled to claim damages against a
woman who committed adultery with her husband. Under customary law , a married
woman seldom has a right of action in her own name. The husband of a married woman
is her guardian and he would normally bring the action but obviously not in a case
where he committed adultery with another woman. Only the adulterous woman's
husband or father can sue the erring husband.
Further: Although LAMA had given women over the age of 18 years the legal capacity
to sue in their own names, it did not give them causes of action which did not exist
previously. If the legislature had intended to do away completely with the differences
under customary law marriages and general law marriages and to eliminate all
disabilities and discrimination arising from customary law, it would have provided for this
in LAMA . Therefore despite LAMA, a woman over 18 who is married in a customary
law marriage cannot sue for damages the woman who has committed adultery with her
husband.
Case also highlights the issue of certificates of blessings given by especially the
Catholic church which are not marriage certificates which many people believe to be.

MAINTENANCE IN A CUSTOMARY LAW UNION


Now dealt with by section 6( 3) of the Maintenance Act- Husbands and wives being
primarily responsible for each other's maintenance.
The Primary courts act specifically provided that the husband at customary law would
be responsible for the maintenance of the wife during the marriage, after the marriage
was dissolved until the wife's remarriage.
In the Maintenance Act it is not so clear and the question would remain whether the
wife/ husband at customary law will be liable for maintenance after dissolution of the
customary law union.
Section 11 ( 3 ) ( a ) provides for the cessation of the maintenance when the wife dies or
remarries so it would seem that a husband can still be made to pay maintenance after
dissolution of the UCLU until wife dies or remarries.
Strangely section talks about wife only - Does that mean if there is an order in favour of
the husband it does not cease if husband remarries ? That is a moot question.

AFRICAN MARRIAGES AND IMMOVABLE PROPERTY


Both the Zim and Rhodesian courts took view that the concept of immovable property
was unknown under customary law - Jirira case so the immovable consequences
would be dealt with in terms of general law and this is both under customary and
general law.
It would appear that immovable property rights of spouses married under customary law
would be determined as if no marriage took place . Not competent to enter into an ante
nuptial contract since marriage potentially polygynous.

Section 13 Of The Customary Marriages Act Was Repealed By The Administration


Of Estates Amendment Act No 6 / 97 : Effect Of This Amendment Is That A
Woman Married Under The Marriage Act Can Own Property In Her Own Right. It Is
Also Important To Note That Section 13 Applied During The Subsistence Of The
Marriage.
Deputy Sheriff Harare vs. Mafukidze And Anor 1997 ( 2 ) ZLR 274
A husband and wife were married under the marriage act cap 5:11. A judgement was
obtained against the husband for a debt owed by him. Goods taken from the
matrimonial home under an attachment order and these goods were about to be sold in
execution. The wife sought to prevent the sale, claiming that the goods were her own
property. The creditor argued that the sale in execution should be allowed to proceed
1stly on the grounds that the claim by the wife was bogus and 2ndly on the basis that
the goods could not be owned by the wife because such ownership was excluded by
section 13 of the customary marriages act cap 5: 07 . That section provides that the
marriage between Africans does not affect the property of the spouses and that this
property devolves according to customary law unless disposed of by will.
Held: In terms of section 13 of the customary marriages act , customary law applies to
the proprietary rights of Africans married in terms of the marriages act. Under customary
law property acquired by the wife during the marriage becomes the property of the
husband subject to certain exceptions :

 Property disposed of by will

 Disposal of immovable property on divorce or death of the husband is governed


by general law as private ownership of immovable property is unknown to
customary law

 Umai property , i.e. livestock and its increases accruing to a woman as a result
of her daughter's marriage or pregnancy

 Mavoko property , that is property acquired by the woman through her personal
labour

 Damages awarded to her for injury to her person or reputation


Held: Further the controversy which exists as whether property acquired by a married
African woman by means of monies earned from her employment should have been
resolved by legislation but in the absence of such legislation, the court had itself to
pronounce on this issue.
Further: There is apparent conflict between Jena vs Nyemba and Mujawo vs
Chogugudza . In Mujawo, it was decided that the choice of law rules contained in
section 3 of the customary law and primary courts act superceded section 13 of the
customary marriages act. On the other hand , it was held in Jena that section 13 had
not been implicitly repealed by LAMA as section 13 dealt with the substantive law
governing moveable property while the legal age of majority deals with age, status,
capacity which are matters of adjective law. This conflict could be resolved by
examining the underlying basis of the decisions in Bennet NO vs Master of the High
Court 1986 ( 1 ) , Chihohwa vs Mangwende 1987 ( 1 ) ZLR 228 ( S ) . It is clear that
LAMA was intended to effect fundamental change by freeing all women over 18 years
from the shackles of the lack of capacity . In the light of this, section 13 of the customary
marriages act should not be taken as laying down the substantive law on proprietary
consequences of marriage. In stead , it should be taken to allow for the application of
the choice of law rule set out in section 3 of the customary law application act.
That choice of law rule provided that customary law applies where the parties have
agreed that it will apply or where is seems to be just and proper that it should apply in
the light of the nature of the case and the surrounding circumstances. The rule suggests
that the common law of Zim is the basic law of the land and customary law is only
applicable by way of exception or that it is subordinate to the common law . In the
present case, the dispute was between the creditor and the married woman. The parties
had not agreed to the application of customary law. The surrounding circumstances
were such as to point to the conclusion that it would be proper for general law to apply.
Held: Further : Although the issue in the present case was essentially concerned with
the proprietary consequences of her marriage and not her legal capacity, there is a
necessary link between capacity and ownership. LAMA granted to persons over the age
of majority the capacity to enter into contracts. It grants the same capacity to both
married and unmarried women. The granting of this capacity to women is meaningless if
all that it allows a married woman to do is acquire property as agent for her husband.
The capacity conferred upon married and unmarried women must have been to acquire
property in their own right.
Held: Although property acquired by a married African woman from monies earned from
her employment could be said to fall into the category of mavoko property in the strict
sense because in traditional society , it was unknown for a woman to be in employment
and to earn her own money in this way.
Further: Property acquired by a married African woman by means of monies earned
from employment or from other productive activities by her can now be owned by her in
her own right.
Further: As the woman had established that the goods in question had been purchased
by her in her own name from monies earned from her employment, the goods belonged
to her , were not executable and should be returned to her.

CUSTOMARY LAW UNIONS : PROPRIETARY CONSENQUENCES


No area of law has vexed the judiciary in the family law arena ( apart from inheritance )
as what to do with customary law unions at their dissolution. The Law development
commission has commissioned an inquiry paper into what can be done to resolve this
issue.
Our courts are not sure which principle of law should apply - unjust enrichment or
universal partnership.
The problem arises from the fact that an UCLU is only valid for limited purpose but
otherwise it’s regarded as invalid. In the eyes of the law the parties are regarded as not
being husband and wife but in researches done it is apparent that this is the most
common type of ''marriage '' amongst Africans. Case law will illustrate the dilemma
faced by the courts
Also Refer To The Enquiry Paper From The Law Development Commission

Pasipanodya vs. Mushoriwa 1997 (2) ZLR 182


The appellant and the respondent had been married in an UCLU . The marriage broke
down irretrievably . The appellant sought a half share of the matrimonial property .
There had been a special plea that the claim had prescribed.
Held: Section 3 ( 2 ) of the Prescription Act did not apply to any right or obligation of one
person in relation to another that is governed by customary law.
Further : Even if the Act had been held to apply to the claim, still would not have
prescribed . The marriage had not been dissolved as an UCLU can be dissolved under
customary law . When the parties had separated , there was no proper dissolution of the
matrimonial property. In the circumstances , the appellant's claim for a formal
distribution could not have been prescribed.
 There is no clear authority on how to handle dissolution of property acquired in
an UCLU

 The courts have used both the universal partnership concept and unjust
enrichment

 Choice of law process

 Equity consideration

 Can the courts use the criteria set out in section 7 of the Matrimonial causes act?

CUSTOMARY LAW PROPRIETARY CONSEQUENCES OF MARRIAGE

 Women treated as perpetual minors - no contractual or proprietary capacity

 Dominance of men - marital power

 Property acquired automatically vested in the husband unless it fell into specific
categories : See Jenah vs Nyemba case

 The excluded property is mombe youmai/ innkomo yohlanga and


mavoko/impahla zezandla - this is property acquired by the woman through her
skills e. g pottery, knitting ,midwife or herbalist
 African woman can also own both movable and immovable property. Colonialists
took view that the ownership of immovable property was unknown under
customary law so general law applied- See Matambo vs Matambo , Jirira vs
Jirira

 Under customary law all meaningful property owned and controllired by


husband. Woman perceived as an object who has to work or the husband and at
the end of the day just leave with her mavoko property or mombe yeumai

 Urban woman rarely has mombe yeumai or mavoko and she walks away empty
handed- Customary law does not recognise her domestic contribution

CUSTOMARY LAW PROPRIETARY CONSEQUENCES OF MARRIAGE

 Women treated as perpetual minors - no contractual or proprietary capacity

 Dominance of men - marital power

 Property acquired automatically vested in the husband unless it fell into specific
categories : See Jenah vs Nyemba case

 The excluded property is mombe youmai/ innkomo yohlanga and


mavoko/impahla zezandla - this is property acquired by the woman through her
skills e. g pottery, knitting ,midwife or herbalist

 African woman can also own both movable and immovable property. Colonialists
took view that the ownership of immovable property was unknown under
customary law so general law applied- See Matambo vs Matambo , Jirira vs
Jirira

 Under customary law all meaningful property owned and controlled by husband.
Woman perceived as an object who has to work or the husband and at the end of
the day just leave with her mavoko property or mombe yeumai

 Urban woman rarely has mombe yeumai or mavoko and she walks away empty
handed- Customary law does not recognise her domestic contribution

OLD CUSTOMARY LAW OF DIVORCE


CHEWA vs. BVUTA 1928 SR 98
A native man and woman of the Mashona tribe were married and the marriage duly
registered. There after it became apparent that the husband was impotent and the wife
in accordance with native custom had intercourse with the husband 's brother and gave
birth to a child by him. On the question as to whether the wife was entitled to divorce by
reason of the husband's sterility.
Held: It will be contrary to natural justice and morality to refuse her relief.
Shoriwa vs. Risi And Mubayiwa 1943-44 NAC 27
Maltreatment by and impotence of a husband each constitutes a valid and separate
ground for divorce at native law. Defendant admitted assaulting his wife more than
once.
Jokonya Vs. Daina And Machingura 1943-44 NAC 44
Husband had paid 10 pounds and one beast lobolo for wife and had lived with wife for
many years , the marriage being childless. Wife sued for divorce on the grounds of
husband's desertion and cruelty. Husband had not supported wife for more than six
years.
Held: A deduction of 5 pounds and one beast from the lobolo returnable was reasonable
in view of husband's failure to contribute to the support of wife.
Seamble: A wife in a native customary marriage is entitled to a divorce on the ground of
her husband's prolonged desertion or cruelty.

Kamenya vs. Jessie And Mbida 1943 4 NAC 4


Although on the dissolution of a customary marriage the woman's guardian may retain a
proportion of the lobolo on account of children born to and services rendered by the
woman , such proportion may be reduced by reason of the woman's adultery.

THE NEW DIVORCE LAW


The Matrimonial causes Act became operational on the 7th of February 1988
Law applies equally to both customary and general law marriages but does not apply
to UCLU.

Traditional leadership
- Traditional leadership is central to the governance of communities in Zimbabwe.
The institution of traditional leadership comprises of chiefs, headman and village
heads. Prior to colonialism, traditional leaders were the sole governing body and
legitimacy to govern was derived from tradition and culture. Traditional leaders
had fused governmental powers and authority, ie they had judicial, administrative
and political power. This is different from the modern states where there is strict
adherence to the principles of separation of powers.
- After colonization in 1890, the colonial government dismantled, replaced and in
some cases, corrupted the institution of traditional leadership. Some powers of
chiefs were usurped by the Europeans for example power to allocate land.
Chiefs became salaried and were now accountable to the colonial government.
- Chapter 15 of the constitution of Zimbabwe deals with the traditional leaders and
their functions. Traditional leaders are custodians of customary law. They are a
path of the constitutional system and they command the same respect as the
general judicial system.
- Traditional leaders participate in the allocation of developmental resources and
determine the developmental priorities in their respective jurisdictions.there is
now transparency in the application of customary law. CASE Tsvangirayi v
Nyikadzino where the court held that traditional leaders should conduct
themselves in a manner reflective of the decorum of the justice system.
The institution of traditional leadership is regulated and monitored within the parameters
of the constitution.
Decisions which they make should be in accordance with the stipulations of the
constitution. This is done to safeguard the rights of the people.
- .

Role of traditional leaders

 The traditional leaders combined the political, religious, administrative and


judicial roles. Of importance in this discussion is how traditional leaders
promote access to justice using customary law.
 Section 280-281 -outlines the duties of chiefs and how they exercise their
customary duties. This was done so that the chiefs will not overstep their
boundaries.
Access to justice – the ability of persons to seek and obtain a remedy using formal and
informal institutions of justice for grievances in compliance with human rights standards.
There is no access to justice where

 Where citizens, especially the marginalized, fear the system


 Citizens view the system as alien and don’t access it
 Where the judicial system is financially inaccessible
 Where parties have no/ can’t afford lawyers
 There is no information or knowledge about rights
 Where there is a week justice delivery system
Access to justice entails the ability by the people to seek and obtain judicial remedies regardless
of where they are located in the country.
Jurisdiction of traditional leaders

- The jurisdiction of traditional leaders is limited to civil cases involving parties who
reside within the area of the court’s authority.
- The content of the case must be suited to trial by customary law.
- Traditional leaders have authority over the communal land and the over persons
within those communal areas.
- Chiefs have a duty to supervise headmen and village heads. they also oversee
collection of levies, conserve the environment, notify government about the
occurrence of natural disasters, outbreaks of pandemic diseases, public order
and protect public property among other things. Thus, they are protectors of the
peoples’ rights.
It is important to note that their roles are being questioned in light of a number of factors;

 Unethical and criminal conduct by some traditional chiefs, eg CASE S v


Musengi & Anor in which a village head was found guilty of murder with actual
intent following a land ownership dispute and it resulted in the death of a woman
at the hands of the said headman.
 Low levels of education, inability to apply a consistent doctrine of precedent etc
have raised doubts about their competences and credibility as judicial officers.
 Some traditional chiefs fail to exercise impartiality in cases involving their
relatives, political matters and boundary disputes where they have an interest.
Despite all this, it is important to note that traditional leaders play an important role in dispute
resolution in most rural communities of Zimbabwe and thus compliments the modern judicial
system.
Importance of traditional courts
In traditional courts, the chief acts as a presiding officer. Everyone participates and the council
of elders usually pass the verdict.

 Use of customary law has a restorative effect. It restores harmony between


conflicting parties through negotiation, forgiveness and compensation.

PRACTICE QUESTIONS
1. Discuss how the “heady mix of legal pluralism, urbanization, commercialization,
and new religions, systems of administration, and cultural worldview contributed
to the emergence of another brand of customary law.”

2. The contract of marriage under customary law may be a violation of human


rights. Discuss.

3. Discuss the concept of accessory liability in delictual claims under customary


law.
4. Discuss the assertion that in trying to provide a solution to property grabbing
cases, the Administration of estates amendment act of 1996 brought new
challenges that were not envisaged by the legislature

5. Discuss the application of the concept of primogeniture before and after the
Administration of Estates Act was amended.

6. Critically analyse the ownership of movable property under customary law

7. With reference to case law, discuss the assertion that women are only entitled to
umai and maoko property under customary law.

8. Critically interrogate the fact that customary justice offers a favourable outcome
than the formal court system.

9. How is a marriage dissolved at customary law?

10. Discuss the considerations that the courts take into account in determining
issues and guardianship of minors born in a registered customary marriage

11. Rudo is a 25 year old lady who is studying law at ZEGU. She gets impregnated
by a teacher at Chipadze High School. When Rudo discovered that she is
pregnant, she informs her boyfriend. The boyfriend does not even want to hear
about Rudo after the disclosure. He tells Rudo to see what he can do. Rudo later
gave birth to a baby boy. The boyfriend now wants the baby. He argues that it is
taboo in their culture to let a child grow up away from the father. He now wants
custody and guardianship of the child. Advise Rudo on the position of the law
pertaining to the guardianship and custody of minors in this case.

12. How are traditional leaders appointed? Is the appointment of traditional leaders
a violation of the right to equality?

13. Discuss the jurisdiction of community courts.

14. Which aspects of customary law do you think is in violation with the bill of rights.
How can the conflict between customary law and human rights get solved.

You might also like