Theresa Chigiji v Manase and Manase Legal Practitioners and Clinton Mudzimu and Registrar of Deeds

Winston Hazvineyi Chigiji was married to Phallice Gondo under a customary union registered in 1976 under the African Marriages Act (now the Customary Marriages Act). That marriage subsisted when Winston purportedly married the applicant, Theresa Chigiji, in 1999 under the Marriage Act [Chapter 5:11]. On 13 February 2004, Winston executed a power of attorney in favour of Manase and Manase Legal Practitioners (1st respondent) to sell his property, Stand 1119 Seke Township. On 25 June 2004, the legal practitioners entered into an agreement of sale with Clinton Mudzimu (2nd respondent) for $65 million, which was paid in full. On 28 October 2004, the property was transferred to Clinton Mudzimu. The applicant sought to have the power of attorney declared invalid, the sale agreement cancelled, and the transfer reversed, claiming she was properly married to Winston, had contributed to the construction of the house, and that Winston lacked capacity to contract when executing the power of attorney.

• Whether the power of attorney granted by Winston to the 1st respondent was invalid due to lack of capacity to contract
• Whether the applicant's marriage to Winston was valid given his subsisting customary marriage to another woman
• Whether the applicant had locus standi to claim the property as matrimonial property
• Whether Winston should have been joined as a party to the proceedings

The application was dismissed with costs

A person married under the Customary Marriages Act (formerly African Marriages Act) cannot validly contract another marriage under the Marriage Act with a different person while the first marriage subsists. Such a purported marriage is bigamous and void, producing none of the incidents of a valid marriage. The parties to such a bigamous union have no matrimonial rights and cannot claim matrimonial property. A party asserting lack of capacity to contract bears the onus of proving such incapacity; the presumption is that every party has legal capacity to contract.

The court noted that Winston could have validly 'upgraded' his customary marriage to a civil marriage with his first wife, Phallice, if he wished. The court distinguished this case from cases like Mashingaidze v Mashingaidze and Chapendama v Chapendama where applicants sought relief arising from tacit universal partnerships or dissolution of unregistered unions, as the applicant in this case did not found her locus standi on such grounds.

This case is significant in Zimbabwean family law for clarifying that a person married under the Customary Marriages Act cannot validly contract a second marriage under the Marriage Act with a different spouse while the first marriage subsists. Such a marriage is bigamous and void, conferring no matrimonial rights. The case also reinforces principles of capacity in contract law (presumption of capacity unless proved otherwise) and procedural requirements for joinder of necessary parties in property disputes.