IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
APPLICATION IN TERMS OF SECTION 85(1)(d) OF THE CONSTITUTION AS
READ WITH RULE 107 OF THE HIGH COURT RULES, FOR DECLARATION OF
CONSTITUTIONAL INVALIDITY OF SECTION 2(1) OF THE MATRIMONIAL
CAUSES ACT [CHAPTER 5:13], AND FOR CONSEQUENTIAL RELIEF
Prepared by;
KHUMALO LEGAL PRACTITIONERS
Number 3 Edson Close
Kensington
HARARE(Ref:STM/vs/ABM01
IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
INDEX
ITEM DESCRIPTION ANNEXURES PAGES
1. Notice of Application 1-3
2. Notice of Address for 4
service
3. Founding affidavit of 5 - 13
Dr. A.B. Mari
4. Draft Order 14 - 15
IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
APPLICATION IN TERMS OF SECTION 85(1)(D) OF THE CONSTITUTION AS
READ WITH RULE 107 OF THE HIGH COURT RULES FOR DECLARATION OF
CONSTITUTIONAL INVALIDITY OF SECTION 2(1) OF THE MATRIMONIAL
CAUSES ACT [CHAPTER 5:13], AND FOR CONSEQUENTIAL RELIEF
TAKE NOTICE that the Applicant intends to apply to the High Court at Harare for an
Order in terms of the Draft Order annexed to this notice and that the accompanying
affidavit/s and documents will be used in support of the application.
If you intend to oppose this application you will have to file a Notice of Opposition in
Form No. 24, together with one or more opposing affidavits, with the Registrar of the
High Court at Harare within ten (10) days after the date on which this notice was
served upon you. You will also have to serve a copy of the Notice of Opposition and
affidavit/s on the Applicant at the address for service specified below. Your affidavits
may have annexed to the documents verifying the facts set out in the affidavits.
If you do not file an opposing affidavit within the period specified above, this
application will be set down for hearing in the High Court at Harare without further
notice to you and will be dealt with as an unopposed application.
DATED AT HARARE THIS ………….. DAY OF FEBRAURY 2023.
………………………………………….
KHUMALO LEGAL PRACTITIONERS
Applicants’ Legal Practitioners
Number 3 Edson Close
Kensington
HARARE(Ref:STM/vs/ABM01
THE REGISTRAR
The High Court of Zimbabwe
HARARE
THE MINISTER OF JUSTICE LEGAL
AND PARLIAMENTARY AFFAIRS
1st Respondent
Government Composite Building
Cnr Central Avenue / 3rd Street
HARARE
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT
2nd Respondent
8th Floor Kaguvi Building
Cnr 4th Street / Central Avenue.
HARARE
THE ZIMBABWE HUMAN RIGHTS COMMISSION
3rd Respondent
144 Samora Machel Avenue
HARARE
THE ZIMBABWE GENDER COMMISSION
4th Respondent
1st Floor PAX House
Kwame Nkrumah Avenue
HARARE
THE NATIONAL COUNCIL OF CHIEFS
5th Respondent
C/O Minister of Local Government Public Works and National Housing
Makombe Buiding
H. Chitepo Avenue,
HARARE
IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
ADDRESS FOR SERVICE
TAKE NOTE that the Applicants’ address for service is that of my legal practitioners,
KHUMALO LEGAL PRACTITIONERS, Number 3 Edson Close, Kensington, Harare.
DATED AT HARARE THIS ………….. DAY OF …………………….. 2023
……………………………………………….
MARI LEGAL PRACTITIONERS
Applicants’ Legal Practitioners
Number 3 Vale Close
Kensington
HARARE(Ref:STM/vs/ABM01
IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
DR. THABO BLESSING MARI’S FOUNDING AFFIDAVIT
I, DR. THABO BLESSING MARI, do hereby make oath and swear that the facts
deposed to herein are to the best of my knowledge and belief true and correct. To the
extent to which I make statements on matters of law, it is on the basis of the legal
advice I have received and accepted and also on my own understanding of the law. I
state as follows:
THE PARTIES
2. I am the Applicant in this matter. I am a citizen and resident of
Zimbabwe. I am an academic, a social worker and an independent consultant.
I am also an activist and advocate of the fundamental rights of women and
children.
4. The 1st Respondent is the Minister of Justice Legal and Parliamentary
Affairs. He is a public officer appointed in terms of section 104 of the
Constitution. His ministry is responsible, among other things, for the
formulation and oversight of all policies and legislation pertaining to marriage
and matrimonial matters. As such his ministry administers the Matrimonial
Causes Act [ Chapter 5:13] as well as the Marriage Act [ Chapter 5:17]. His
physical address is 5th Floor New Government Complex, Corner Samora Machel
Avenue and 4th Street, Harare.
5. The 2nd Respondent is the Minister of Women Affairs, Community, Small
and Medium Enterprises Development. Her ministry is responsible for gender
issues and the issues to be determined in this application touch on the mandate
of the Ministry. Her ministry is also the focal point in government for all matters
affecting women. Her physical address is 8th Floor Kaguvi Building, Corner
Central Avenue and 4th Street, Harare
6. The 3rd Respondent is the Zimbabwe Human Rights Commission an
institution established in terms of section 242 of the Constitution and whose
mandate includes monitoring compliance with human rights standards in the
governance of the country. Its physical address is 144 Samora Machel Avenue,
Harare
7. The 4th Respondent is the Zimbabwe Gender Commission, an institution
established in terms of section 246 of the Constitution with a mandate to
spearhead the attainment of gender equality across all policies and laws in the
country. Its physical address is 1st Floor Pax House, Kwame Nkrumah Avenue,
Harare
8. The 3rd and 4th Respondents are cited herein as interested parties in case
they have views on this matter of great national importance that they may wish
to be recorded by the Court. No relief is sought against them.
9. The 5th Respondent is National Council of Chiefs established by section
285 of the Constitution. Traditional leaders, are the custodians of African
customs and African customary law. This Application raises issues that should
be of interest to traditional leaders in this country and the 5 th Respondent has
been cited in order that it may have an opportunity to respond to any aspect
of this application on behalf of traditional leaders, or in the interests of the
preservation of cultural values, should it so wish. No relief is sought against it
specifically
LOCUS STANDI
10. I have locus standi to institute proceedings in this matter because I am
a person acting in the public interest as contemplated by section 85(1)(d) of
the Constitution.
12. as stated earlier I am a social worker and an academic in the area of
women and children’s welfare. I am passionate about advancing the rights of
the marginalised and vulnerable people of Zimbabwe.
13. In the course of my work as a consultant in women and children’s issues
I have become aware of the provisions of the Matrimonial Causes Act [Chapter
5:13],
SUBSTANCE OF MY APPLICATION
14. It is common cause that most marriages in Zimbabwe are unregistered
customary marriages.
15. I am aware and it is common cause that the definition of marriage
provided in section 2 of the Matrimonial Causes Act excludes unregistered
customary marriages. This means that the principles set out in section 7(4) of
that Act to guide the division of property upon divorce are not applicable to
couples in Unregistered Customary Law Marriages.
16. I also noted that section 17 of the Marriages Act [ Chapter 5:17] which
was enacted in 2022, provides that unregistered customary marriages shall be
valid only for purposes of determining the status, guardianship, custody and
the rights of succession of the children of such marriage. There is no mention
of the rights relating to division of property upon divorce.
18. It is common cause that unregistered customary marriages are actually
marriages that have been solemnised according to customary law rites. The
only thing that distinguishes an unregistered customary law marriage from a
registered customary law marriage is the registration certificate.
19. I have observed that when the Courts are called upon to divide the
property of spouses at the demise of an unregistered customary law marriage,
the result is often unjust and inequitable for the wife. The courts are alive to
this as well and have been innovative in finding ways of ameliorating the unjust
results. Thus the courts have applied such principles as “unjust enrichment”
and treated the union as a universal partnership. While these judicial efforts
are commendable, they still fall short of according the spouses the same
protection as they would enjoy under the Matrimonial Causes Act.
20. I wish to bring to the attention of the court the following cases where
the courts have bemoaned the injustices against women that arise from failure
to extend the application of the Matrimonial Causes Act to unregistered
customary marriages Chapeyama v Matende & Another 1999(1) ZLR 534,
Jengwa v Jengwa 1999(2) ZLR 121(H), Mtuda v Ndudzo 2000(1) ZLR 710(H),
Marange v Chiroodza 2002(2)ZLR and recently, Tinei Mautsa v Melody
Kurebgaseka HH 106-17. While the exclusion of unregistered marriages from
the protection of the Matrimonial Causes Act may have been permissible under
section 23(3) of the former Constitution, the current Constitution imposes a
different discipline, but these are points of law which will be addressed in the
heads of argument filed for the Applicant.
21. An appropriate remedy for the defects in the Matrimonial Causes Act
described in this application would have been for Parliament to simply amend
section 2 of the Act but this option was not taken up in efforts at marriage and
divorce related reforms. More specifically, the newly enacted Marriages Act
[Chapter5:17] did not amend the definition of marriage in section 2 of the
Matrimonial Causes Act. Section 17 of the Marriages Act actually restates the
pre–Marriages Act position with regard to the status of unregistered customary
marriages.
22. The new Marriages Act introduced Civil Partnerships via section 41 and
goes on to provide that the provisions of sections 7 to 11 of the Matrimonial
Causes Act may be applied upon the dissolution of such partnerships. I found
it surprising that Parliament would want to protect the partners of a civil
partnership, a union which is not recognised as a marriage under either the
general laws or the customary laws of Zimbabwe but could not accord the same
protection to the spouses of an unregistered customary marriage.
23. For the avoidance of doubt, a civil partnership is not and can never be
equated to an unregistered customary union. I believe that to lump
unregistered customary marriages together with civil partnerships is to
dishonour those marriages and the people in those marriages. It also denigrates
customary law in a manner that smacks of the colonial contempt for anything
African. An attitude which has no place under the current Constitutional
dispensation.
24. As the Courts have observed time and again in the cases alluded to
above, the extension of the protective provisions of the Matrimonial Causes Act
to unregistered customary marriages ought to be achieved through legislative
intervention. The opportunity for such intervention arose in 2022 when
Parliament enacted the Marriages Act. According to its long title the objects of
the Act are, inter alia, to amend several statutes including the Matrimonial
Causes Act. The Act however did not amend the definition of Marriage in section
2 of that Act.
28. I am making this application in terms of sections 85(1)(d) of the
Constitution seeking an order in terms of the Draft Order annexed hereto.
Below is an explanation of the issues before the court.
DENIAL OF RIGHTS
The right to equality and non-discrimination
29. Section 2 of the Matrimonial Causes Act defines marriages as “including
a marriage solemnized in term of the Customary Marriages Act [Chapter 5:07]”.
It is common cause that this definition excludes unregistered customary
marriages and the Courts have consistently ruled that unregistered customary
marriages are not covered by the definition. Consequently, the Courts have also
held that the division of property upon dissolution of unregistered customary
marriage should not be governed by the principles set out in section 7(4) of
that Act.
30. It is common cause that the principles set out in section 7(4) of the
Matrimonial Causes Act, were introduced as a way of ensuring fairness and
equity in the division of property between spouses upon divorce after it had
been observed that the common law principles yielded results that were
inequitable for women.
31. Section 56(1) of the Constitution provides that all persons are equal
before the law and have the right to equal protection and benefit of the law.
32. Section 56 (3) goes further to prohibit discrimination on several grounds
including custom, culture, sex, gender.
33. Section 56(4) provides that a person is treated in a discriminatory
manner for the purpose of subsection (3) if—
(a) they are subjected directly or indirectly to a condition, restriction or
disability to which other people are not subjected; or
(b) other people are accorded directly or indirectly a privilege or advantage
which they are not accorded.
34. It is my belief that to the extent that the definition of marriage in the
Matrimonial Causes Act excludes unregistered customary marriages, resulting
in the spouses in an unregistered customary marriage not being eligible to
access the protection accorded by that Act, the definition unfairly discriminates
against spouses married according to custom and culture
35. It is a well-documented phenomenon in this country and the Courts have
observed in numerous cases that it is women who tend to benefit the most
from the protective provisions of section 7(4) of the Matrimonial Causes Act.
This is because the principles set out therein recognise the needs of the spouses
(as opposed to direct financial contribution) as a legitimate factor to be taken
into account on the division of the property of the spouses. The Court may also
take into account the direct or indirect contribution made by each spouse to
the family, including contributions made by looking after the home and caring
for the family and any other domestic duties when weighing the respective
contribution of the spouses. This is a huge plus for women because due to the
division of roles in the home along gender lines, wives tend to make their
contributions indirectly.
36. The division of property upon the demise of an unregistered customary
marriage on the other hand does not take into account indirect contribution or
the needs of the spouses. This places women in those marriages at a great
disadvantage.
37. Exclusion of unregistered customary marriages from regulation under
the Matrimonial Causes Act therefore constitutes unfair discrimination on the
basis of sex and gender to the extent that women in such marriages are placed
at a greater disadvantage than their male counterparts.
Right to language and culture
38. Section 63 of the Constitution provides for the right to language and
culture and states that Every person has the right—
(a) to use the language of their choice; and
(b) to participate in the cultural life of their choice;
but no person exercising these rights may do so in a way that is inconsistent
with this Chapter.
39. I understand this right to mean that spouses should be free to solemnise
and conduct their marriages in accordance with their cultural beliefs as long as
they do not violate anyone else’s rights in the process. To deny customary law
marriages validity on the basis of failure to register the marriages unfairly limits
the rights of adults in those marriages to participate in the cultural life of their
choice.
The right to human dignity
40. Section 51 of the Constitution provides: Every person has inherent
dignity in their private and public life, and the right to have that dignity
respected and protected.
41. It is my view that failure to treat unregistered customary law marriages
as fully valid amounts to dishonouring those marriages and the parties therein,
including the children born in those marriages and is therefore an affront to the
right to human dignity in violation of section 51 of the Constitution
RELIEF SOUGHT
42. I seek the following relief:
43. That section 2 of the Matrimonial Causes Act [Chapter 5:13] be declared
Constitutionally invalid to the extent that it defines marriage in a way that
excludes unregistered customary marriages in violation of the right to equality
and non-discrimination protected under section 56 of the Constitution, the right
to dignity protected under section 51 of the Constitution and that the right to
culture protected under section 63 of the Constitution.
44. Consequent to the declaration of constitutional invalidity as aforesaid, I
will also seek an order to the effect that the definition of “marriage” in section
2 of the Matrimonial Causes Act be read as including unregistered customary
marriages.
WHEREFORE I PRAY FOR AN ORDER IN TERMS OF THE DRAFT
DONE AND SWORN TO AT HARARE ON THIS DAY OF FEBRUARY 2023.
SIGNED: ………………………………….
DR. THABO BLESSING MARI
BEFORE ME:
………………………………………
COMMISSIONER OF OATHS
IN THE HIGH COURT OF ZIMBABWE CASE NO HC.
In the matter between
Dr. THABO BLESSING MARI APPLICANT
AND
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS 1st RESPONDENT
THE MINISTER OF WOMEN AFFAIRS,
COMMUNITY, SMALL AND
MEDIUM ENTERPRISES DEVELOPMENT 2ND RESPONDENT
THE ZIMBABWE GENDER COMMISSION 3RD RESPONDENT
THE ZIMBABWE HUMAN RIGHTS
COMMISSION 4TH RESPONDENT
THE NATIONAL COUNCIL OF CHIEFS 5TH RESPONDENT
___________________________________________________________
THE DRAFT ORDER
Harare, the of 2021
Before the Honourable Mr(s) Justice _________
_______________ for the Applicant(s)
________________for the Respondent(s)
WHEREUPON after reading documents filed of record and hearing Counsel
IT IS ORDERED THAT:
1. Section 2(1) of the Matrimonial Causes Act [Chapter 5:13] is hereby declared
Constitutionally invalid to the extent that it defines marriage in a manner which
excludes unregistered customary marriages, such exclusion amounting to;
(a) unfair discrimination on the grounds of custom and culture
in violation of the right to equality and non-discrimination
protected under section 56 of the Constitution;
(b) a violation of the right to language and culture protected
under section 63 of the Constitution; and
(c) a violation of the right to protection of human dignity
protected under section 51 of the Constitution.
2. Consequently, pending the rectification of the aforesaid defect by Parliament,
section (2)(1) of the Matrimonial Causes Act shall be deemed to read in the
appropriate part as follows:
“marriage” includes: -
a marriage solemnized in term of the Customary Marriages Act [Chapter
5:07] and an unregistered marriage solemnised according to customary
rites.
3. The 1st Respondent shall pay costs of suit.
BY THE JUDGE BY THE REGISTRAR
………………………….. ………………………..
