Locardia Karimatsenga v Morgan Richard Tsvangirai and Elizabeth Macheka and Bishop Kadenge and The Registrar General Tabaiwa Mudede (N O)

### Preamble
1
HH 369-12
HC 10324/12
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LOCARDIA KARIMATSENGA

versus

MORGAN RICHARD TSVANGIRAI

and

ELIZABETH MACHEKA

and

BISHOP KADENGE

and

THE FREGISTRAR GENERAL TABAIWA

MUDEDE (N O)

HIGH COURT OF ZIMBABWE

GUVAVA J

HARARE, 12 September 2012

Urgent Application

E Samkange, for the applicant

Advocate T Mpofu, for 1st and 2nd respondents

S M Guwuriro, for 3rd respondents

No appearance for 4th respondent

GUVAVA J: This matter once again brings to the limelight the lack of harmony in the marriage laws and the unfortunate consequences of the application of two parallel laws with one legal system and for the same group of people. The issue begs for urgent legislative intervention which has been sadly lacking despite numerous calls by this court and women’s groups for a resolution.

The applicant has approached this court on an urgent basis seeking the following relief:

“(a)	That the first and the second respondents are interdicted from marrying each other in terms of the Marriage Act [Cap 5:11] on 15 September 2012 or any other day.

(b)	That the third respondent and any other priests in his church are interdicted from marrying the first and second respondents on 15 September 2012 or any other date.

(c)	That the fourth respondent be interdicted from issuing a marriage certificate to the first and second respondents”.

The basis of her claim is set out in her founding affidavit and may be summered as follows:-

The applicant and the first respondent were lovers. In August 2011 the applicant advised the first respondent that she was pregnant. On 21 November 2011 the first respondent sent his representatives to the applicant’s family and married her in terms of African customary law. The applicant proceeded to the first respondent rural home in Murambinda were she stayed with the latter’s mother for two months. When the applicant was 71/2 months pregnant she suffered a miscarriage and unfortunately lost the baby.

On 6 September 2012 she learnt that the first respondent was going to marry the second respondent in accordance with the Marriages Act [Cap 5.11] on 15 September 2012. She states that although she was aware of the customary marriage of the first respondent to the second respondent she had not been unduly worried as under customary law a man can have more than one wife.

She seeks the urgent intervention of the court in stopping the ceremony on 15 September because she has no other remedy. She states that in the event of the first respondent marrying the second respondent in terms of the general law she will seize to be his wife by operation of law.

The application was opposed by the first, second and third respondents. The first respondent, whilst not disputing the relationship with the applicant, denies that he paid lobola and married the applicant in terms of customary law. He states that he sent emissaries to pay damages for having impregnated the applicant. He denies that there is a valid reason to stop his marriage to the second respondent. The first and second respondents raised five preliminary points which I have set out as follows:

That this court has no jurisdiction to deal with the matter.

That the matter has disputes of facts which cannot be resolved on the papers.

That the relief sought by the applicant is defective as the interim relief sought is the same as the final order.

The applicant has no valid cause of action to bring an application for a interdict

The matter is not urgent.

The third respondent opposed the application on the basis that he had been improperly

cited firstly as a Bishop of the Methodist Church and secondly in his personal capacity when in fact he should have been cited in an official capacity. He also denied that he is scheduled to conduct the marriage ceremony between the first and second respondents. He further stated that as a reverend in the church he was a priest like any other and would not have the mandate to stop any other priest from conducting the service. He applied for dismissal of the case against him and claimed costs on a legal practitioner and client scale.

I propose to deal with the third respondent’s case first before delving into the issues raised by the first and the second respondents.

It is common cause that the third respondent is a reverend in the Methodist Church. He has been a Minister of Religion and a man of cloth for the past 34 years. He is also a lecturer at the United Theological College of the Methodist Church.

At the commencement of the proceedings, after having had sight of the third respondent opposing affidavit, I enquired from the applicants counsel whether he was still persisting with the case against the respondent as it was quite apparent that they had cited the wrong person. Mr Samkange indicated that he was. It was only during argument that he saw the light and withdrew the claim. He also tendered costs on an ordinary scale.

Mr Guwuriro who appeared for the third respondent submitted that the applicant should pay costs on a legal practitioner and client scale as the applicant had maliciously cited the respondent. He submitted that a diligent search would have alerted her to the fact that the third respondent was not a Bishop in the Methodist Church and neither was he conducting the marriage ceremony. As the third respondent was cited in his personal capacity he has had to incurr the costs of this application personally which was totally unnecessary.

In my view the citation of the third respondent was extremely reckless as a simple phone call or enquiry would have answered the applicant. The third respondent does not head the Methodist Church of Zimbabwe and would not have the mandate to stop other priests in conducting the ceremony. I am of the view that this case deserves special consideration meriting an award of cost on a higher scale such that the third respondent will not be out of pocket in respect to his expenses in this litigation.

(See Noel v Waterber Landbouwers Koperative Vere eniging  1946 AD 597 at 607).

I turn now to the preliminary points raised by the first and second respondents. Whilst several preliminary points have been raised by the first and second respondents I hold the view that this matter may be resolved on the very first point on jurisdiction.

Jurisdiction

Advocate Mpofu submitted that this court had no jurisdiction to deal with the objections raised by the applicant as the legislature has appointed through statute the persons who should deal with an objection to a marriage. It was quite apparent that Mr Samkange’s argument was that this court has inherent jurisdiction to deal with all matters. He argued that the applicant only became aware of the marriage licence at the hearing and therefore seeking to file an objection with the magistrate at this late stage would not assist her and may lead to a injustice as the first and the second respondents may get married before the inquiry is finalised. In the case of Nyaguwa v Gwinyai 1981 ZLR 25 at 27, PITTMAN J stated as follows when he dealt with this very point:-

“I was of the opinion that, in this country, each court is a creature of statute, and its powers are created and defined by statue … If one court were to claim that it has same inherent power to overrule another court instead of a power specifically created by statue, in effect it would be claiming the power to nullify the body of statute law…”

The principle as espoused by PITTMAN J has been adopted in a plethora of other cases in this court and in the Supreme Court. Thus it is clear to me that where the legislature has intentionally and by statute set out a procedures and remedies for certain acts these must be followed. This court cannot invoke its inherent powers to take away powers which have been given to certain persons in an act of parliament.

The applicant states in her papers that she has no remedy available to her to lodge her objection to the marriage of the first and second respondent save to come to this court to seek an interdict. However s 19 of the Marriage Act [Cap 5:11] (“the Act”) sets out the procedure to be adopted by a person who wishes to object to a marriage.

Section 19 (1) states as follows:

“(1)	Any person desiring to raise any objection to any proposed marriage shall lodge such objection in writing with-

(a)	the person who makes publication of the relevant banns of marriage or notice of intention to marry: eleven, any person desiring to raise any objection may do so orally, and such objector shall, if so required by the person making the publication, confirm such objection in writing; or

(b)	the magistrate who issues a marriage licence in respect of such proposed marriage; or

(c)	the marriage officer who is to solemnize such marriage.

It is my view that once the applicant became aware of the intended marriage she should have lodged her objection in writing to the Marriage Officer who was to solemnise the marriage. That was the remedy that was available to the applicant on 6 September when she confirmed that the marriage would take place.

At the hearing it became apparent that the first and second respondent had obtained a marriage licence from a Magistrate in terms of s 16 of the Act. This document was attached to the respondent opposing affidavit as an annexure. Once again the remedies of how to deal with a marriage licence are set out in s 19(3) of the Act.

It is not for this court to usurp the powers of the Magistrate and the Marriage Officer and take over their functions. If this court were to use its inherent powers to take over the functions of the lower court it would be tantamount to amending legislation through the back door. (See Coutlesy Connection (Pvt) Ltd & Anor v Mupamhadzi 2006(1) ZLR 479 (H) at 482-483.

Although Mr Samkange argued most persuasively on an issue which affects thousands of other women in the same situation I was not persuaded that it was the function of the court to amend a statute properly promulgated by law. It is for these reasons that I accepted the arguments by the first and second respondents. In the event that I am wrong in making a finding on the basis of this preliminary point I will proceed to deal with the other preliminary issues raised.

Disputes of Fact

The central dispute which has been raging in this case is whether or not the first respondent paid roora for the applicant and thus married her in terms of customary law. The applicant states in their founding affidavit that roora was paid but this is denied by the first respondent. The applicant at the hearing applied for leave to produce a DVD recording of the events that took place when the first respondent sent his representatives to the applicant’s family on 21 November 2011. The applicant submits that this evidence will lay to rest the argument of whether or not the applicant and the first respondent married under customary law.

The first respondent in the opposing affidavit attached a statement which he made

soon after the purported marriage. He totally denies such a marriage to the Press. The applicant was aware of this statement as it was published in all the national newspapers. Thereafter the first respondent paid roora for the second respondent and they had an engagement party in April 2012 which was again published in the media.

A party stands or falls on the papers they have filed in application procedure.  Surely in this case the applicant should have known at the very least that it was incumbent upon her to place sufficient evidence in her founding affidavit to show that a marriage did indeed exist between her and the first respondent.  If she was in possession of a DVD recording of the proceedings she should have referred to it in her evidence or at the very least attached the usual list upon which roora is paid.

I thus find that there is a clear dispute of fact which the applicant should have been aware of when the proceedings were instituted and the applicant failed to file sufficient evidence to deal with this dispute and it cannot be resolved on the papers.

Interim Relief Sought is the same as the Final Relief

The papers filed by the applicant sought an interdict stopping the marriage of the first and second respondents. The interim relief was however the same as the final relief sought.

This issue in my view was dealt with decisively in the well-known case of Kuvarega v The Registrar General 1998 (1) ZLR 188 where CHITIKOBO J held that it was incompetent to claim such final relief by way of an urgent chamber application.

The applicant, in argument, sought to amend the terms of the final order by deleting para (b) thereof and substitute it as follows:

“That the applicant’s rights as a customary law wife be determined definitely”

It was submitted that by making this amendment the defect complained of in the Order had been cured.

The difficulty I had with this submission was firstly, that the applicant had not laid out a basis in the founding affidavit for the relief which was now being sought.  The founding affidavit does not set out the declaration which the applicant perceives as her right as would have been expected.  It seemed to me that this was an afterthought on the part of the applicant in view of the difficulties that her application had encountered.

I would thus again uphold the point in limine as raised.

Urgency

The respondents submitted that this matter was not urgent at all as the applicant has an alternative remedy and will not suffer irreparable harm.  The applicant submitted that the matter is urgent as the applicant would suffer irreparable harm as a customary law wife if the first and second respondents were to wed on 15 September 2012 as she would be divorced by operation of law.

In my view the applicant has failed to satisfy the requirement for urgency.  Firstly she has an alternative remedy as I have already explained in s 19 of the Act.  The powers granted to a magistrate or marriage officer are such that they can cancel a marriage licence or refuse to solemnize the marriage if they are satisfied that there is valid ground to do so.

The applicant may not have been aware that the first and second respondent had been issued with a marriage licence until yesterday but this nevertheless does not in any way take away her rights to file an objection even at this stage.  The applicant submitted that she would not have access to the marriage officer so that she can make an oral objection at the wedding but the Act clearly provides for written objections which can be made before the wedding. The plaintiff will not suffer irreparable harm as there is still time for her to lodge an objection with the magistrate, should she wish to do so, as she is now aware that there is a marriage licence in existence.

I therefore find that there is no urgency in this matter.

Cause of Action

The final point which was raised by the respondents relates to whether or not the applicant has a cause of action to seek an interdict in this court. It was submitted by Advocate Mpofu that as her claim was based in customary law she had no basis to claim a remedy under the general law.  It was submitted by Mr Samkange that the applicant’s cause of action arises from the recognition of customary law in terms of s 89 of the Constitution and the fact that the applicant is a customary law wife.

Section 89 of the Constitution provides as follows:

“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe force of law.”

A reading of s 89 of the Constitution clearly makes the recognition of customary law subject to any other law.  Section 3 of the Customary Marriages Act [Cap 5:07] provides that a customary marriage which has not been solemnised is not a valid marriage.  The legislature recognised the marriage for certain purposes as set out in s 5 (5) of that Act and s 68 (3) of the Administration of Estates Act [Cap 6:01].

It is clear to me that in order for the applicant to approach this court for an interdict she must do so based on a recognised principle of general law. I agree entirely with the submissions by Advocate Mpofu that the applicant has failed to lay this legal basis.

Costs

On the issue of costs it was submitted by the respondents that the applicant must pay costs on a punitive scale for a number of reasons: Firstly the language used in the applicant’s founding affidavit was not temperate. She falls just short of calling the first respondent insane.	Secondly the applicant failed to concede in areas where it was quite apparent that she should have done so.

The applicant in response submitted that she should not be visited with costs on a higher scale as she has been courageous enough to fight for the rights of women who are married under customary law. Mr Samkange further submitted that the application was not filed for an ulterior motive other than to allow a court to determine the rights of women married under customary law.  He submits that as the case raised issues of national interest each party should bear their own costs.

The general rule is that costs follow the cause, and a successful litigant should be entitled to recover their costs.

As was stated by Rubin L “Law of Costs in South Africa” Juta & Co (1949) at p 190:

Punitive costs are awarded at the discretion of the court where there has been dishonest, or malicious conduct, vexatious or reckless or frivolous proceedings.

At the commencement of this judgment I lamented the problems that have arisen due to the parallel legal system in this country and the problems faced by women due to the non- recognition of unregistered customary law unions except for specified purposes. It is not in dispute that a very large number of marriages in Zimbabwe are in terms of an unregistered customary law unions.  It is also not in dispute that legislature has not done anything to try and rationalize the marriage laws of this country so that problems, such as the one that presents itself in this case, are dealt with.

I was also of the view that the first respondent could have taken a number of steps to circumvent this litigation had he wished to do so.

The applicant too could have conducted her litigation in a less abrasive manner.  Thus, whilst I am not in any way condoning the language properly complained of by the respondents, I do not consider that an award of costs should be made against her. She was fighting for her man and it is known that emotions tend to run high in such cases.
	At the commencement of this matter the applicant applied to lead evidence through a DVD of what transpired when the first respondent went to the applicant’s home on 21 November 2011.  I reserved my decision on the matter pending my hearing of the preliminary matters raised. As I have found for the first and second respondents on the preliminary points it is my view that it is not necessary for me to make a ruling on the admissibility of this evidence as it would have been more relevant on the merits which I have not determined.

I thus make the following order:

The application be and is hereby dismissed.

The applicant shall pay the third respondent costs on a legal practitioner and client scale.

There shall be no order as to costs in respect to first and second respondents.

Venturas & Samkange, applicant’s legal practitioners

Atherstone & Cook, 1st and 2nd respondents’ legal practitioners