The Limpopo High Court, sitting in Polokwane, was faced with an application to decide whether a then 17-year-old who married a soldier in 1970 in terms of customary law in Zimbabwe is deemed to be legally married to him in terms of South African law.
The soldier husband moved to South Africa 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, known as the Rhodesian Bush War (1964-1979), 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, Acting Judge Malose Monene said that owing to him 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.
At the dawn of Zimbabwean freedom in 1980, the soldier, a member of the losing army, was, despite not being a South African, ostensibly "seconded" to the South African Defence Force of Apartheid South Africa, which shared affinity with the defeated Ian Smith Army.
Having now somehow become a South African in the South African Army, he met and courted the second now second wife, also a soldier of Zimbabwean descent. They lived in Phalaborwa.
In the meanwhile, the soldier had also acquired property in Pretoria, where later the applicant would be able to visit, particularly around the eighties. His second wife also mostly raised his two children born from his first wife here in South Africa.
The applicant was aware of the presence of the second wife and, in her own words, considered her to be her husband's other wife.
Trouble befell this guarded serenity that was the soldier’s life when he died in 2016 at his Masvingo home, with the applicant having returned to his customary wife when he fell sick. The judge noted that this trouble was over what was to become of his estate in both Zimbabwe and South Africa, but particularly in South Africa, where the second respondent (second wife) was appointed executor of his estate. This was done on the basis of her production of her "civil" marriage certificate to the soldier.
This trouble manifested as an application before this court where the applicant sought to have her customary marriage to the deceased upheld over the "civil" marriage of the second respondent to him. 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 Judge 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 solemnization of the customary marriages regardless of their age,” he said.
The judge also frowned upon the fact that the second wife only obtained a marriage certificate after the soldier’s death. This while the marriage allegedly took place in 1978. The marriage certificate also did not bear the soldier’s ID number. The second wife opted not to testify and clear this matter up, Judge Monene said.
He also noted that the deceased would only have come to South Africa upon the defeat of the Rhodesian army and the dawn of freedom in Zimbabwe in 1980. He thus could not have been in South Africa, at least legally enough to even marry “civilly”, in 1978.
“The second respondent did not take this court into her confidence and thus failed to clarify a lot of questions at least around her marriage to the deceased and at most around how she and the deceased managed to be South Africans and members of the South African army while they were Zimbabweans in the heyday of Apartheid in this country,” Judge Monene said.
He ruled that the customary marriage between the first wife and the deceased, concluded in Zimbabwe, is recognised as a valid marriage for the purpose of administering his estate. The civil marriage to the second wife was overturned.