The respondent and appellant were in an unregistered customary law union from 1995, with three minor children born of the union. The respondent issued summons in the Magistrates Court claiming sharing of property and custody of children. The property in dispute included an 8-roomed house originally constructed with the respondent's employer loan as a 2-roomed house, which was later extended to 8 rooms with funds the appellant earned while working in Botswana. The respondent produced a Deed of Transfer showing the house was registered in his name. At trial, both elder children testified they preferred to stay with their mother. The magistrate awarded 80% of the house to the respondent and 20% to the appellant, divided movable assets, and awarded custody of the two boys to the respondent and the youngest daughter to the appellant, despite the boys' expressed preference to stay with their mother.
1. The appeal was allowed. 2. The matter was remitted to the Magistrates Court for a trial de novo before a different magistrate. 3. Parties were required to file pleadings in terms of the rules and hold a pre-trial conference. 4. The Assistant Registrar was directed to appoint pro deo counsel to represent the appellant at trial. 5. Pending trial de novo, custody of all three minor children was awarded to the appellant with the respondent directed to provide adequate maintenance. 6. Each party to bear its own costs.
1. Unregistered customary law unions are not recognized marriages under Zimbabwean law and the provisions of section 7 of the Matrimonial Causes Act do not apply to them. 2. Magistrates courts do not have jurisdiction to distribute property of parties to an unregistered customary union under the Matrimonial Causes Act; such claims must be founded on recognized common law causes of action including joint ownership, partnership, unjust enrichment, or equity. 3. Courts cannot mix summons action and application procedures as these are mutually exclusive procedures governed by distinct rules. 4. Magistrates must advert to choice of law provisions in section 3 of the Customary Law and Local Courts Act and observe monetary jurisdictional limits. 5. In custody matters, courts must consider children's expressed preferences and avoid separating siblings unless necessary, with the paramount consideration being the children's best interests.
The court reiterated its support for legislative intervention to protect women in unregistered customary law unions who have contributed to the acquisition of the estate, noting that courts stand ready to assist such women where proper and recognizable causes of action are pleaded and established. The court observed that magistrates dealing with estates of unregistered customary unions tend to fall into three errors: treating unregistered unions as if registered, failing to advert to choice of law provisions, and forgetting their monetary jurisdictional limits. The court emphasized that rules of court are framed to avoid arbitrariness and ensure fairness, and any procedure outside the rules is susceptible to being set aside as unprocedural.
This case is significant in Zimbabwean jurisprudence for clarifying the procedural and substantive law applicable to unregistered customary law unions. It reinforces that such unions are not recognized as marriages under the Matrimonial Causes Act and magistrates courts cannot distribute property under that Act. It emphasizes proper adherence to court procedures and rules, the importance of considering children's wishes in custody matters, the undesirability of separating siblings, and the courts' role as upper guardian prioritizing children's interests. The case also demonstrates the courts' willingness to provide pro deo legal representation in matters of paramount importance involving vulnerable parties.