DUBE v DLAMINI & ORS 2016 (2) ZLR 579 (H)

Flynote

Customary law: " marriage " formalities " proof of " effect of Legal Age of Majority Act 1982

Headnote

The plaintiff was the only surviving son of the deceased, who passed away on 9 December 2010. The deceased was a widower whose wife, the plaintiff's mother, had died 12 years earlier. The first defendant had commenced living with the deceased at some time between 2004 and 2007 at the erstwhile matrimonial home of the deceased and his dead wife. After the deceased had passed away, the first defendant had taken control of his property, including the house, a farm, a motor car and livestock. The plaintiff sought a declaratory order that the first defendant was not the deceased's surviving spouse and that the deceased's estate be administered to her exclusion, for his sole benefit. The plaintiff averred that the deceased had cohabited with the first defendant and not married her by customary or general law. Despite the first defendant having obtained a "confirmation of customary marriage" at the customary court in Bulawayo, secured the deceased's death certificate and sought to be declared the beneficiary of the estate at the office of the additional magistrate, the plaintiff alleged she had no right to the estate. At the conclusion of proceedings at the customary court, a consent order was issued that the entire estate should be inherited by the plaintiff, while the first defendant would own the farm jointly with the plaintiff. The circumstances under which that order was granted remained unclear, although it remained extant and was not challenged by any of the parties. The plaintiff believed that his father and the first defendant merely cohabited and alleged no wedding ever took place, whether customarily or otherwise. The plaintiff went on to state that his father never told him of any plans to marry the first defendant and stated that he did not witness any customary ritual resembling a marriage. Both the plaintiff and his grandfather (the deceased's father) testified that the deceased had not been married to the first defendant. Although the deceased had approached his own father with a view to have him speak to the first defendant's family about a wedding, the deceased had changed his mind stating that the first defendant was not a fair and proper person to marry. The formalities required for a customary law marriage to come into being had not taken place. The first defendant's evidence was found to be unreliable.

Held, that the requirements for a customary union are that: (i) the intending spouses must agree to marry each other; (ii) the guardian of the woman must consent to the marriage; (iii) the guardian of the woman and the intended husband must agree on the lobola to be paid by the intending husband; (iv) there must be a formal handing over of the woman by her guardian.

Held, further, this understanding of a customary marriage is not affected by the Legal Age of Majority Act since a marriage cannot be customary without the association of a woman's guardian.

Held, further, whilst it is necessary for lobola to be agreed for there to be a customary union, it is not necessary for the lobola to be paid.

Held, further, that the first defendant was not the surviving spouse of the deceased.