The first applicant (Morgan Tsvangirai) and second applicant (Elizabeth Macheka) intended to marry on 15 September 2012 under the monogamous civil rites of the Marriage Act. The second respondent (Locadia Karimatsenga) filed an objection with the first respondent (a magistrate) claiming she was married to the first applicant through an unregistered customary law union allegedly contracted on 21 November 2011. The first applicant denied ever being married to the second respondent. The magistrate conducted an enquiry and ruled in favor of the second respondent, finding that a valid customary law marriage existed based on evidence including affidavits, a video recording of the marriage ceremony, and a detailed roora (lobola) payment list signed by all parties. The magistrate cancelled the marriage licence. The applicants brought an urgent ex parte application to suspend the cancellation, arguing the magistrate misdirected himself. The matter was heard urgently as the wedding was scheduled for the following day and was to be attended by the State President and regional leaders.
The application to suspend the cancellation of the marriage licence was dismissed.
An unregistered customary law marriage or union, while not recognized as a valid marriage under section 3 of the Customary Marriages Act for purposes of divorce, is nonetheless recognized as a marriage under section 104 of the Criminal Law (Codification & Reform) Act for purposes of preventing and prohibiting bigamy. A person who is party to an unregistered customary law union cannot lawfully contract a monogamous civil marriage with another person without committing bigamy. Courts will not sanction or authorize the commission of a crime, including bigamy. The validity of a customary law union can be established through evidence of roora payment, which is demonstrated not merely by payment of damages for impregnation but by the nature and extent of customary payments made. Courts have no jurisdiction to hear divorce actions in relation to unregistered customary law marriages, as such divorces must occur extra-judicially according to customary law practices and procedures. The rule of law is supreme and applies equally regardless of the status or position of the parties involved.
The court made several non-binding observations: (1) The humorous opening remark about the "wages of marrying during the sacred month of November in apparent violation of a well-established Shona custom prohibiting marriage during that month"; (2) The observation that since the enactment of the Legal Age of Majority Act 15/82, women who have attained the legal age of majority no longer need a guardian's consent for customary law marriage; (3) The criticism that it was "remiss of counsel to refer this hopeless application to Court in the middle of the night without any prospects of success"; (4) The statement that had the application been opposed, the court would have been inclined to award punitive costs "as an expression of this Court's displeasure at this apparent abuse of legal process"; (5) The comment that "it does not seem to matter to the judiciary that the State President and other regional dignitaries are scheduled to attend the illegal marriage ceremony" - emphasizing that the law applies equally to all; (6) The observation that the first applicant "is solely to blame for the mess he finds himself in" having had nine months to resolve the situation.
This Zimbabwean High Court judgment is significant for its treatment of unregistered customary law marriages and their legal recognition, particularly in the context of bigamy prevention. While this is a Zimbabwean case (not South African), it illustrates important principles regarding the interaction between customary law marriages and civil marriages, the recognition of unregistered customary unions for specific legal purposes even when not formally recognized as marriages under marriage legislation, and the constitutional supremacy of law over political considerations. The case demonstrates how different statutes may recognize customary unions differently for different purposes without being in conflict. It also addresses evidentiary issues in proving customary marriages, the role of roora/lobola payments, and jurisdictional limits on courts regarding customary law divorces of unregistered unions.