Helliate Jeke v Witness Zembe

On 15 December 2017, the plaintiff issued summons against the defendant claiming dissolution of a customary law union, sharing of property, custody, maintenance, and eviction. The plaintiff and defendant were in an unregistered customary law union which had soured due to infidelity, violence, loss of love and affection, and separation. The parties filed a consent paper on 13 April 2018 regulating their relationship and ancillary relief. The plaintiff proceeded to set the matter down on the unopposed roll. The plaintiff's legal practitioners filed Form 30A summons as specified in Order 35 (Matrimonial Causes) Rule 269A, which is specific to registered marriages, not unregistered customary law unions.

• Whether Form 30A summons is the appropriate procedure for matters involving unregistered customary law unions
• Whether the High Court can grant a dissolution order for an unregistered customary law union
• Whether the Matrimonial Causes Act applies to unregistered customary law unions
• What is the proper procedure and pleadings required for claims arising from unregistered customary law unions
• What system of law applies to the distribution of property in unregistered customary law unions

The matter was struck off the roll. There was no order as to costs.

Unregistered customary law unions are not marriages for purposes of the Matrimonial Causes Act. Parties to such unions cannot be divorced by the courts using matrimonial causes procedure. Form 30A summons and the procedure under Order 35 Rule 269A (Matrimonial Causes) are specific to registered marriages and cannot be used for unregistered customary law unions. To properly claim property distribution arising from an unregistered customary law union, a litigant must: (1) prove the existence of an unregistered customary law union; (2) prove termination of the union; (3) invoke the choice of law process under section 3 of the Customary Law and Local Courts Act to establish the application of general law; and (4) plead a recognized cause of action such as unjust enrichment, joint ownership, or tacit universal partnership. Ordinary summons, not matrimonial causes procedure, is the appropriate vehicle for such claims.

The court made observations about the need for law reform regarding unregistered customary law unions, noting that organizations such as WLSA and ZWLA have worked to show problems caused by non-recognition and have suggested reforms. The court cited with approval the statement from Mashingaidze v Mugomba that "time has surely come to actively consider reviewing the situation especially in the light of the increasing and not inconsiderable recognition being extended to unregistered customary law unions." The court also observed that without law reform, litigants will continue to be shortchanged by legal practitioners who approach such cases as if they are registered marriages. The court emphasized that lawyers must exercise due diligence when representing clients, including ensuring proper pleadings and seeking appropriate relief.

This case is significant in Zimbabwean family law as it comprehensively clarifies the correct procedure for dealing with unregistered customary law unions. It establishes clear guidelines for legal practitioners on how to properly plead cases involving property distribution following the termination of unregistered customary law unions. The judgment serves as a cautionary reminder that unregistered customary law unions are not marriages for purposes of the Matrimonial Causes Act and cannot be treated procedurally as registered marriages. The case also contributes to the ongoing call for law reform regarding the recognition and treatment of unregistered customary law unions in Zimbabwe, highlighting the gap between legal recognition and practical reality for many couples.