Tsvangirai, whose wife, Susan, died in a car crash in 2009, intended to enter into a civil union with widow Elizabeth on September 15.
This is Mutevedzi's full judgement:
Mr Morgan Tsvangirai and Ms. Elizabeth Mazvita Guma came before me and made an application for a marriage licence. They both swore to affidavits that there was no lawful impediment why they could not be joined in matrimony. I duly granted them the licence.
On 12/9/12 in accordance with the provisions of Section 19(1) ( b) of the Marriage Act (Cap. 5:11), Ms Locadia Karimatsenga filed an objection against the intended marriage and sought the cancellation of the marriage licence. Her basis was that she is married under customary law to Mr Tsvangirai. The notice of objection did not cite Mr Tsvangirai and Ms Guma as respondents. I could not dismiss it for that because Section (19)()1(b) does not prescribe any form in which the objection must be made.
The rules of natural justice particularly the audi alteram paterm rule however, demanded that I had to hear the other side before making any determination. Accordingly, I asked counsel for Ms Karimatsenga to serve Mr Tsvangirai and Ms Guma. They duly obliged.
At the inquiry, I advised both Mr [Everson] Samkange and Advocate [Thabani] Mpofu and their teams that it was clear that this was an inquiry which needed to remain inquisitorial and there was no need to adopt an adversarial approach and that I was going to largely depend on the papers before me.
Advocate Mpofu started by raising an objection in limine in that the matter had been dealt with and finalised by the High Court. I, however, had occasion to read the unedited version of Honourable Justice Guvava’s judgment, which is at complete variance with the submissions by Advocate Mpofu. The learned judge clearly pointed out that Ms Karimatsenga’s remedy lay in approaching the Magistrates Court and filing an objection to the intended marriage. That right was not extinguished by her abortive application for an interdict in the High Court. I therefore find Advocate Mpofu’s point in limine without merit and will as I hereby do, dismiss it.
The merits of the objection
Mr Tsvangirai’s opposition to the objection was based on the argument that he never married Ms Karimatsenga under customary law. It was further argued that even if there was such a customary law marriage, as long as it was unregistered, it would not suffice as a lawful impediment to the wedding.
Section 3(1) of the Customary Marriage Act (Cap. 5:07) provides that:
“Subject to this Section, no marriage contracted according to customary law including the case where a man takes to wife the widow (s) of a deceased relative shall be registered as a valid marriage unless –
(a) Such marriage is solemnised in terms of this Act…”
It is not in dispute that Ms Karimatsenga’s union with Mr Tsvangirai, if there is one, is not or was not solemnised in terms of the Act.
The only times that an unregistered customary law union is recognised as a marriage are outlined in Section 3(5) of the same Act and these are:-
“for purpose of customary law and custom relating to the status, guardianship, custody and rights of succession of the children of such marriage" or in Section 68(3) of the Administration of Deceased Estates Act (Cap.6.01).
Because of this provision in the Customary Marriage Act, there has generally been an outcry from various quarters for parliament to amend our marriage laws and protect the rights of women married under the unregistered customary law union regime which coincidentally constitutes a very high percentage of marriages in Zimbabwe. Even our superior courts have been quite vocal in that respect.
All things being equal, I would have held that unfair as it could be, this matter must have closed there. It, however, has escaped many people’s realisation that the advent of the Criminal Law (Codification and Reform) Act ushered in another progressive recognition of the unregistered customary law union which immensely protects women married under that regime.
Section 104(1)(c) of that Act provides that:-
“Any person, who being a party to… a potentially polygamous marriage and knowing that the marriage still subsist, intentionally purports to enter into a monogamous marriage with any person other than his/her spouse by the potentially polygamous marriage shall be guilty of bigamy.”
Initially I had an intention of inquiring into whether there was an unregistered customary law marriage between Mr Tsvangirai and Ms Karimatsenga because the argument by Advocate Mpofu was somewhat convincing that even if there was, that union is still not recognised by law. The recognition of this marriage by our criminal law code, however, changed that understanding fundamentally.
As long as there is evidence of an existing customary law union, then the marriage of Mr Tsvangirai to Ms Elizabeth Guma is potentially bigamous and the court cannot ignore that. I had no choice therefore but to call evidence to resolve the dispute of whether indeed Mr Tsvangirai paid roora [bride price] for Ms Karimatsenga in terms of African custom.
In the application, Mr Samkange had attached a list of the items of roora that were allegedly paid to the Karimatsenga family by Mr Tsvangirai’s entourage. They also indicated that they had a video recording of the entire ceremony which the court could view.
As already said, I initially believed the video was inconsequential. I, however, later admitted the video recording and Advocate Mpofu consented to its production and was also given a copy of the video. I must point out that both Advocate Mpofu and his instructing attorney’s questioning of the authenticity of the recording was very lukewarm if it was there at all.
In that video recording, it was clear that contrary to unsubstantiated assertion by Mr Tsvangirai that he had only paid damages for impregnating Ms Karimatsenga out of wedlock, the ceremony was a payment of roora which culminated in Mr Tsvangirai’s emissaries asking for their in–laws’ blessings to have a white wedding.
The items tabulated on the list of roora tally exactly with items mentioned in the video recording. On a balance of probabilities, the scale tips in the direction that for all intents and purposes this was a marriage between Mr Tsvangirai and Ms Karimatsenga.
After watching the video, Advocate Mpofu returned with an additional affidavit from Mr Tsvangirai and in a bid to obtain the truth, I accepted the additional affidavit and Mr Samkange and his learned colleagues consented to its admission. There are startling revelations in that statement.
Firstly, Mr Tsvangirai disowns his emissaries and alleges that they did what he had not mandated them to do. In other words, he alleges that they went and asked for Ms Karimatsenga’s hand in marriage without his consent. This is unfathomable. The delegation from his side was quite big and very joyous. There were large quantities of groceries and generally there was quite some merry-making synonymous with a planned ceremony. I have no doubt that claiming otherwise is only a futile attempt by him to deny the obvious.
Secondly, Mr Tsvangirai says that even if the court were to find that he indeed married Ms Karimatsenga under customary law, he was offering gupuro, i.e. the token given to the woman married under an unregistered union when a man intends to divorce her. He then attached a US$1 note to the affidavit.
In the court’s view, this was an acceptance that it could not be denied that indeed this union existed. I accepted that the gupuro method is how a woman is divorced under this regime but there is everything wrong with how Mr Tsvangirai intended to do this.
Firstly, gupuro is not channelled through a magistrate or marriage officer. There are recognised customary ways of doing it which must be followed.
Secondly, it cannot be given simply because the woman has raised an objection to Mr Tsvangirai’s intended wedding.
Thirdly, there are consequences attendant upon that process which must be complied with for the divorce process to be complete just like it is not enough under general law to simply issue summons and end there. In any case, Ms Karimatsenga was not personally in attendance at the hearing and did not even have sight of the purported gupuro. It is therefore needless to say that those efforts were stillborn.
Against this background, it is my finding that on a balance of probabilities there exists an unregistered customary law union between Mr Tsvangirai and Ms Karimatsenga.
Having said this, the question that remains is does this suffice as a lawful impediment?
I have already explained that it is criminal for one to enter or purport to enter a monogamous marriage when one is in an unregistered customary law marriage with another person. This is what Mr Tsvangirai seeks to do in this case. If his intended marriage to Ms Guma proceeds, it is potentially bigamous.
I am presiding over this inquiry not even as a marriage officer, but as a magistrate. I cannot sanction the wedding when it is clear to me that the parties to the marriage may be committing an offence. There is a need for Mr Tsvangirai to sweep clean these issues before seeking to be married in holy matrimony.
I am therefore convinced that Ms Karimtsenga’s objection to the intended marriage indeed shows a lawful impediment to that marriage and by virtue of the powers I have in terms of Section 19(3) of the Marriage Act (CAP.5:11) I shall as I hereby do cancel the marriage licence I gave to Morgan Tsvangirai and Elizabeth Mazvita Guma on 27/08/12.
PROVINCIAL MAGISTRATEPost published in: News