VUNDU v COMMISSIONER OF TAXES 1992 (2) ZLR 59 (H)

Flynote

Revenue and public finance — income tax — abatement for family taxpayer — whether child of unregistered customary union recognised for purposes of abatement

Headnote

The children of an unregistered customary law union are not "lawful" children for the purposes of para (b) of the definition of a family taxpayer in s 2 of the Income Tax Act [Chapter 181].

"Lawful" means legitimate and as the children were not the progeny of a valid marriage they were not legitimate, even though lobola had been paid and the taxpayer had been awarded custody by the court. In 1988 the Income Tax Act was amended to give recognition to the spouse in any customary marriage, whether registered or not, but no amendment was made to give recognition to the children of an unregistered customary law union. There is no equity in tax laws and the anomaly of the inclusion of the spouse but exclusion of the children of a customary law union could only be corrected by the Legislature. Therefore, as the appellant had only children but no spouse from his unregistered customary law union, he was not a family taxpayer in terms of the Income Tax Act [Chapter 181].