Farai Chitunya v Irikidzai Mabulala

The Plaintiff and Defendant were married under an unregistered customary law union entered into in 2009. The marriage was dissolved sometime in 2010 when the Plaintiff was given a divorce token and forcibly removed from the matrimonial home. During the subsistence of their union, the parties acquired movable and immovable property. On 25 November 2024 (14 years after dissolution), the Plaintiff issued summons claiming an equitable division of the property acquired during the marriage. The Plaintiff contended that although they were married under customary law, they lived a modern lifestyle and that customary law would lead to injustice. She sought application of the general law principle of tacit universal partnership. The Defendant raised a special plea that the claim had prescribed in terms of sections 14 and 15 of the Prescription Act [Chapter 8:11], as the summons were issued more than three years after the cause of action arose in 2010.

• Whether the Plaintiff's claim for property division had prescribed under the Prescription Act [Chapter 8:11]
• Whether a claim based on tacit universal partnership arising from an unregistered customary law marriage is subject to prescription
• When the cause of action arose for purposes of prescription
• Whether the claim constituted a 'debt' as defined in the Prescription Act
• Whether the Prescription Act applies to claims brought under general law principles as opposed to customary law

The special plea was upheld. The Plaintiff's claim was dismissed as it had prescribed. The Plaintiff was ordered to bear the Defendant's costs.

Where a party to an unregistered customary law marriage elects to bring a claim for division of property under general law principles (such as tacit universal partnership) rather than under customary law, the claim constitutes a 'debt' as defined in section 2 of the Prescription Act and is subject to the three-year prescription period under section 15(d) of the Prescription Act. The exemption from prescription in section 3(2) of the Prescription Act applies only to matters governed by customary law, not to claims brought under general law principles. The cause of action for purposes of prescription arises on the date the customary law marriage is dissolved (such as when a divorce token is given), and the claim must be brought within three years of that date, failing which it is extinguished by prescription in terms of section 14(1) of the Prescription Act.

The court observed that payment of a divorce token is a recognized and accepted manner of dissolving an unregistered customary union. The court also made an observation regarding the Plaintiff's attempt to change the date from 2010 to 2021 in her heads of argument, describing the explanation that 2010 was a typing error as unacceptable. The court noted that if there had to be agreement over property first or a court order before prescription could run, it would be illogical as it would beg the question of how the Plaintiff found her way into court without such agreement, order, or enforceable claim. The court expressed agreement with the reasoning in Ngaru v Kusano HH 265/21 that the date of dissolution of marriage is the date the cause of action arises.

This case is significant in Zimbabwean law (applied in this South African legal analysis context) as it clarifies that when parties to an unregistered customary law marriage elect to bring property claims under general law principles (such as tacit universal partnership) rather than customary law, they subject themselves to the Prescription Act. The case establishes that the date of dissolution of a customary law marriage (such as when a divorce token is given) is the date from which the cause of action arises for prescription purposes. It reinforces that parties cannot benefit from both systems - they cannot invoke general law principles while simultaneously seeking the exemption from prescription that applies to customary law matters under section 3(2) of the Prescription Act. The case emphasizes the importance of timeously pursuing property claims following dissolution of marriages, particularly where parties elect to proceed under general law rather than customary law.