Emmah Ndlovu v Janet Dube and Others

The late Isaiah Sithole first married the 1st defendant (Janet Dube) through a registered customary law marriage. He subsequently married the plaintiff (Emmah Ndlovu) through an unregistered customary law union. Both parties claimed to be the surviving spouse of the deceased. The plaintiff sought to set aside the final liquidation and distribution account in the estate of late Isaiah Sithole (DRBY 500/13), to be declared the surviving spouse, and to be declared the sole beneficiary of house number 928 Luveve, Bulawayo. There was no evidence that the deceased had divorced the 1st defendant before entering into the union with the plaintiff. The 1st defendant disputed that the plaintiff lived with the deceased at the time of his death, claiming the deceased lived with another woman. The plaintiff claimed she lived with the deceased while 1st defendant said she had gone to South Africa to work.

• Whether the plaintiff could be declared the sole surviving spouse of the deceased where the deceased's registered customary law marriage to the 1st defendant had not been dissolved by divorce
• Whether a registered customary law marriage can be terminated by means other than divorce
• Whether the plaintiff was entitled to be the sole beneficiary of the deceased's property (stand 928 Luveve)
• Who was entitled to inherit from the estate of the late Isaiah Sithole

1. Stand 928 Luveve Township be sold to best advantage and the net proceeds therefrom be shared equally between plaintiff and 1st defendant. 2. Each party bears its own costs.

A registered marriage, whether in terms of the Marriages Act Chapter 5:11 or the African Marriages Act Chapter 5:09, can only be legally dissolved through divorce. Only a divorce can lawfully end a registered marriage. Where there is no evidence of divorce from a registered customary law marriage, the first spouse remains legally married to the deceased, and a subsequent unregistered customary law union does not extinguish the rights of the first spouse. Where multiple spouses have claims to the estate and both have valid legal foundations for their claims, courts may recognize both as surviving spouses with equal inheritance rights.

The court observed that the 2nd defendant was improperly cited and should have been cited as Lovemore Hlongwane N.O. in his capacity as the Executor in the estate of the late Isaiah Sithole DRBY 500/13. The court also noted that based on the conflicting evidence regarding who lived with the deceased at the time of his death, it could not hold firmly that the plaintiff was telling the truth and the 1st defendant was lying on that point. The court commented that "a fair outcome of this case will be one that recognizes both women as surviving spouses" and that an order for sale of the property with equal sharing of proceeds "will serve the interests of justice in this case."

This case is significant in Zimbabwean law (applicable to understanding similar South African legal principles) as it clarifies that: (1) a registered customary law marriage can only be dissolved by divorce, not by subsequent polygamous unions or separation; (2) where a deceased had multiple marriages and only one was properly dissolved, both spouses may have rights to inherit from the estate; (3) courts will apply equitable principles to recognize the rights of multiple surviving spouses where the deceased's marital status was not properly resolved during his lifetime. The case demonstrates judicial recognition of the complexities arising from polygamous relationships and the protection of rights of all lawful spouses in succession matters.