Mukondiwa v Zimvumi & Anor (HC 10558 of 2001) [2004] ZWHHC 1049 (16 June 2004)

HH 49-2006 HC 10558/01 GETRUDE MUKONDIWA versus PELAGIA ZIMVUMI and THE DIRECTOR OF PENSIONS HIGH COURT OF ZIMBABWE HUNGWE J HARARE, 17 June 2004 Stated Case Mr Musakana, for the plaintiff Mr Mabuye, for the defendant HUNGWE J: The plaintiff married the late Alexander Mukondiwa in terms of the Marriage Act [Chapter 5:11] in 1987. Prior to his marriage to plaintiff the late Alexander had married the 1st defendant on 1997 and that marriage was solemnized in terms of the then African Marriages Act [Chapter 238] now Customary Marriage Act [Chapter 5:07]. Plaintiff believed this marriage had in fact been formally dissolved. In truth and in fact, it had not. When plaintiff’s legal practitioners initially issued summons, they claimed on plaintiff’s behalf an order declaring plaintiff’s marriage to the late Alexander Makwiramiti valid. They also sought an order declaring her the surviving spouse of the late Alexander Mukondiwa thereby entitling her to a share of the pension and other benefits in terms of the Pensions and Other Benefits Act [Chapter 16:01]. As against the 2nd defendant, an order that he be interdicted from paying out any pension or other benefits otherwise due to her as the deceased’s widow and surviving spouse. When the matter was called to trial I directed that the matter be argued as a stated case as it appeared to me that only a question of law was raised by these facts which were common cause. HH 49-2006 HC 10558/01 The facts are briefly set out inn the State case. The stated case required this court to rule on whether the marriage by the plaintiff to the deceased Alexander is valid. If it is not whether she is still entitled to a claim of then benefits of a surviving spouse in terms of the pension and other Benefits Act, [Chapter 16:01]. In her heads of argument, plaintiff conceded that where a man enters into a customary union which is solemnized in terms of the Customary Marriages Act [Chapter 5:01] he may not during the subsistence of that marriage, contract a marriage in another person in terms of the Marriage Act [Chapter 5:11]. If he purports to enter into that second marriage, under the latter Act before he divorces his customary law wife, the second marriage is invalid. See: Chamboko v Chamboko 1998(2) ZLR 516. The converse situation to this case was considered in Makwiramiti v Fidelity Mutual Assurance & Another 1998 (2) ZLR 471. That case as here concerned a claim to pension benefits by two women who gave themselves out as the surviving spouse. Applicant had been married to the deceased in terms of the Marriages Act. The second respondent was subsequently married in terms of the Customary marriages Act. The court held that having chosen to marry in terms of the civil law, the deceased waived his customary privileges in respect of polygamy. He … absolute incapacity to marry any other person in terms of ….. the general law or the customary law.