Jane Musindo and Augustine Tongai Kereke v Leocadia Kereke (nee Muroiwa)

The respondent and 2nd appellant were married in terms of the Marriage Act [Chapter 5:11] in 1966, a monogamous marriage subsisting for approximately 50 years. In 2015, the 1st appellant (the 2nd appellant's mistress) moved into the Kereke homestead (the matrimonial home) at the 2nd appellant's invitation and began living there openly in an adulterous relationship with the 2nd appellant. The respondent alleged incessant harassment by the 1st appellant which forced her to seek refuge at relatives' homes. The respondent approached the Magistrates Court at Bikita seeking the eviction of the 1st appellant from the Kereke homestead, an interdict against interference with farming business, and an interdict restraining the adulterous relationship. The 1st appellant raised a preliminary objection challenging the respondent's locus standi to institute eviction proceedings as she was not the owner of the property. The Magistrates Court dismissed the preliminary objection and granted the eviction order. The appellants appealed to the High Court.

• Whether a wife married in terms of the Marriage Act has locus standi to institute eviction proceedings against her husband's mistress from the matrimonial home owned by the husband
• Whether the court below erred in considering issues of adultery and sanctity of marriage when determining the eviction application
• Whether the actio rei vindicatio (requiring ownership) is the only basis for eviction proceedings
• Whether a mistress residing at the matrimonial home with the husband's consent can be evicted by the wife

The appeal was allowed with costs. The judgment of the Magistrates Court was set aside and substituted with an order dismissing the claim for eviction of the 1st appellant from the Kereke homestead, with costs against the respondent in favor of the 1st appellant.

A wife married in terms of the Marriage Act does not have locus standi to institute eviction proceedings against a third party (including her husband's mistress) from the matrimonial home where she is not the owner of that property. The actio rei vindicatio, which forms the basis of eviction proceedings, requires the plaintiff to prove ownership of the property and that the defendant is in possession thereof. Marriage bestows only limited personal rights between spouses which do not extend to proprietary rights over the matrimonial home owned by the husband. These personal rights cannot defeat the rights of third parties in possession of the property with the owner's consent.

The court made extensive obiter comments calling for urgent law reform. Zisengwe J stated that it is "inherently contradictory" that a wife can sue for adultery damages and interdict an illicit relationship but cannot evict a mistress from the matrimonial home. The court observed that bringing a mistress into the matrimonial home constitutes emotional abuse and domestic violence. The current legal position offends constitutional provisions on gender equality (Section 56), protection of the family (Section 25), and equality between spouses (Section 26), as well as Zimbabwe's obligations under CEDAW. The court stated that a married woman should not be forced to choose between enduring severe emotional abuse or divorce, and should have the right to protect the dignity of her marriage through eviction proceedings. The court expressed that "providing a right carte-blanche to men to bring into the matrimonial home live-in mistresses" is inimical to constitutional principles and gender equality. There is a "bounden duty on the courts to uphold the ethos and mores espoused in the Constitution" including preventing domestic violence and ensuring equality of rights between spouses.

This case is significant in Zimbabwean jurisprudence as it highlights the glaring gap between constitutional principles of gender equality and the reality of family property law. While the court was bound by existing precedent to rule against the wife, it issued a strong call for law reform, noting that current law allowing husbands to bring mistresses into the matrimonial home with impunity violates constitutional guarantees of equality between sexes (Section 56), protection of the family and prevention of domestic violence (Section 25), and equality of rights between spouses (Section 26). The judgment also notes inconsistency with Zimbabwe's obligations under CEDAW. The case illustrates judicial frustration with outdated property law principles that undermine women's dignity and family protection in the context of modern constitutional values. It serves as a clarion call to the legislature to reform matrimonial property laws to align with constitutional imperatives.