Betty Zingunde v Miriro Susan Chikabida N.O and The Master of the High Court (DR 2461/19)

The applicant sought a declaratory order under section 14 of the High Court Act to be declared the surviving spouse of the late Flavian Chikabida Charumbira who died on 26 September 2019. The applicant claimed they were married in terms of an unregistered customary law marriage with lobola paid to her family in 1996 and 2006. They had three children together. However, at the time of the 1996 customary marriage, the deceased was already married to Apollonia Chikabida in terms of the Marriage Act [Chapter 5:11], which marriage was only dissolved in 2004. The deceased died testate and the first respondent was appointed executor. The Master of the High Court held an edict meeting on 27 September 2019 and determined that the applicant's marriage to the deceased was a nullity because it was entered into in 1996 while the deceased was still validly married under civil law. The applicant did not appeal or review that decision but instead brought this fresh application for a declaratur. Evidence showed that even if the marriage was initially valid, it had been dissolved through customary law processes including payment of gupuro (divorce token), and at a family meeting the deceased stated he was single.

• Whether the application was properly before the court given the applicant failed to appeal or review the Master's decision of 27 September 2019
• Whether the relief sought was academic in nature given the estate was being administered under a will that provided for the applicant regardless of marital status
• Whether there were material disputes of fact requiring oral evidence
• Whether the customary law marriage was void ab initio due to the deceased being married under the Marriage Act at the time lobola was first paid in 1996
• Whether the customary law marriage had been dissolved prior to the deceased's death

The application was dismissed with costs on a higher scale.

A customary law marriage entered into while one party is validly married under the monogamous Marriage Act is void ab initio and cannot be cured by subsequent dissolution of the civil marriage. A customary law marriage is formed at the time of initial payment of lobola and family agreement, not upon final payment of all lobola. A void act is a legal nullity which is incurably bad and any further proceeding founded on it is equally incurably bad. Where the Master of the High Court makes a determination regarding marital status, the proper procedure to challenge that decision is by way of appeal or review, not by bringing a fresh application for declaratur which ignores the extant decision. A declaratory application will be dismissed as academic where the relief sought would not result in any substantial change to the administration of an estate.

The court observed that where affidavits need to be ranked in terms of veracity, matters requiring oral evidence should proceed by way of action rather than application. However, where other evidence beyond affidavits (such as documentary evidence and undisputed facts) provides a ready answer to disputed issues, there is no material dispute of fact requiring oral evidence. The court also noted that costs on a higher scale should only be awarded in exceptional circumstances where a party's conduct is mischievous and objectionable, but that in this case the applicant's pattern of filing and withdrawing applications at the last minute, combined with the academic and improperly conceived nature of this application, justified such an award to mark the court's disapproval.

This case clarifies important principles in Zimbabwean law regarding: (1) the proper procedure for challenging administrative decisions by the Master of the High Court (requiring appeal or review rather than fresh declaratory applications); (2) the validity of customary law marriages entered into when one party is already married under the monogamous Marriage Act; (3) the timing of when customary law marriages are formed (upon initial payment of lobola and agreement, not final payment); (4) the doctrine that void acts are incurably bad and cannot be cured by subsequent events (applying MacFoy v United Africa Co Ltd); (5) when courts will reject applications as academic exercises; and (6) when costs on a higher scale are appropriate for vexatious litigation. The case demonstrates the interaction between civil and customary law marriages in the Zimbabwean legal system.