Cross-border customary marriage under scrutiny

South African Acting Judge Malose Monene was faced with an application to decide whether a then 17-year-old woman who married a soldier in 1970 in terms of customary law in Zimbabwe is deemed to be legally married to him in terms of SA law. A Pretoria News report notes the soldier husband moved to SA in the 1980s and left his wife behind in Zimbabwe. He, in the meantime, married a woman here, in terms of civil law. The Zimbabwean wife, who is now in her 70s, turned to court to be declared the executor of her now late husband’s estate. She asked the court to declare her as his lawful wife and to overturn his civil marriage to the second wife. The court was told that during the Zimbabwean war of liberation, the soldier – a black recruit to Ian Smith’s Rhodesian Army – married the then teenage applicant through customary rites in 1970. They had two children. In commenting on the facts of the case, Monene said that owing to his being a black member of a white army resisting the liberation of blacks, it was never safe for him to stay with his wife for any extended length of time at their rural homestead. The wife at times had to stay with relatives and most times kept the home fires burning alone with him either at Rhodesian Army barracks or in the bushes exchanging fire with Zimbabwean freedom fighters.

The applicant sought to have her customary marriage to the deceased upheld over the ‘civil’ marriage of the second respondent to him. The Pretoria News report notes the application was opposed by the second wife, who said she was the only lawful wife. She also raised the point that the marriage to his first wife cannot stand as she was only 17 at the time. But Monene said there is nothing placed before this court to suggest that either according to Zimbabwean custom and/or customary law or any other law, the age of 17 of the applicant as at 1970 invalidates the marriage. ‘There is no provision in the Zimbabwean marriage legal instruments which sets a particular age as a marriage age for the spouses in customary marriages, let alone female parties to those marriages. If anything, the Customary Marriages Act of Zimbabwe (Chapter 5:07) appears to provide for a requirement that there be guardians for all the women at the solemnisation of the customary marriages regardless of their age,’ he said.