Gladys Chigova v Stanley Nyadzombe and Hanky Terbalanche

The first respondent and appellant were in an unregistered customary law union that commenced in 2003 and was subsequently dissolved. During the subsistence of the marriage, the appellant was granted a 99-year lease in respect of Subdivision 1 of Kupinda Farm in Hurungwe, measuring 395.76 hectares, pursuant to an offer letter dated 15 December 2003 and lease agreement of 2007. Following dissolution of the marriage, the parties had been farming on a 50/50 basis since 2011 based on the Ministry of Lands and Rural Resettlement policy on 99-year leases. In 2020, the appellant contracted the second respondent to plough the whole farm including the first respondent's 50% share, disrupting his farming plans under command agriculture. The first respondent sought an interdict to bar the appellant and second respondent from interfering with his 50% share. The appellant denied being married to the first respondent, claiming he was merely her boyfriend, and argued there were material disputes of fact requiring oral evidence.

• Whether an unregistered customary law union constitutes a legally recognizable marriage for purposes of the Ministry of Lands and Rural Resettlement policy on 99-year leases
• Whether the first respondent established a clear right to the farm sufficient to justify granting a final interdict
• Whether the first respondent proved irreparable harm suffered or reasonably apprehended
• Whether the matter should have been resolved on papers or required oral evidence due to disputes of fact
• Whether the court should have awaited the Minister's decision on shares before granting the interdict

The appeal was dismissed with costs for lack of merit. The Magistrate Court's order granting the interdict was upheld, barring the appellant and second respondent from ploughing, cultivating and planting the whole farm including the first respondent's 50% share without his consent, while allowing the appellant to continue farming on her own portion.

Where a 99-year lease is granted during the subsistence of an unregistered customary law union, the spouse is deemed to hold an equal joint and undivided share in the leasehold pursuant to the lease agreement terms and government land policy. Upon dissolution of the marriage, the divorced spouse retains his or her rights as holder of an equal joint and undivided share in the leasehold unless the lessee compensates the divorced spouse for the assessed share. Land held under 99-year leases is state land, not personal property of the named lessee. The definition of "lessee" in the lease agreement includes "that person and his spouse or spouses jointly," conferring rights on spouses regardless of whether the marriage is registered. For purposes of establishing a clear right to obtain an interdict protecting rights to farm on leased land, an unregistered customary law union is recognized under the land policy even where it may not be recognized for purposes of divorce proceedings under the Matrimonial Causes Act.

The court observed that it is improper to impugn a lower court for failing to deal with an argument that was not raised before it, citing Chikanda v UTC SC 7/99. The court noted that the clear intention of the State was to protect spouses irrespective of the form of marriage they had, as evidenced by the Ministry proceeding to schedule a meeting for the parties to make submissions regarding their respective interests even where it was clear they had an unregistered customary law union. The court remarked that the appellant was "misguided in believing that she owns Kupinda Farm" and that her story was "a sham" that was "quickly unravelled" by her own actions and submissions in other court matters.

This case is significant in Zimbabwean land and family law as it clarifies that unregistered customary law unions are recognized for purposes of the government's 99-year lease policy, even though such unions may not be recognized for purposes of divorce under the Matrimonial Causes Act. It establishes that state land held under 99-year leases is not personal property but is held jointly by spouses as defined in the lease agreement and government policy. The case reinforces the protective intent of the land policy toward spouses regardless of the form of marriage, and confirms that divorced spouses retain equal joint and undivided shares in leaseholds until compensated by the lessee. It also demonstrates the court's willingness to draw adverse inferences against litigants who provide contradictory evidence in different proceedings.