Online Reporter
Fidelis Munyoro
Chief Court Writer
A SOUTH African High Court has recognised a Zimbabwean customary marriage as legally valid within South Africa’s legal framework while simultaneously nullifying a subsequent civil marriage, in a case that has drawn attention from legal scholars and the wider public for its nuanced handling of cross-border and cultural legal issues.
The ruling, handed down in October 2024 and upheld last week, stems from a complex inheritance dispute involving the late Mishack Charova and two women — his Zimbabwean customary wife, Loveness Mukoyi, and his South African civil wife, Chipo Charova — both of whom claimed matrimonial rights to his estate.
Delivering judgment, Acting Judge Malose Monene of the Limpopo High Court in Polokwane upheld the validity of the customary marriage for the purpose of administering the deceased’s estate in South Africa.
At the same time, the court declared the civil marriage with Chipo Charova a nullity.
Last week, Justice Monene dismissed Chipo’s application for leave to appeal, affirming the court’s initial decision.
“This court is not persuaded that its decision faces a reasonable prospect of being overturned on appeal,” Justice Monene ruled, citing Section 17(1) of the Superior Courts Act.
“The applicant’s (Chipo Chirova) arguments are, at best, a clasping at straws, and at worst, a disregard for the established principles of law and cultural context that are central to this case.”
The court’s decision relied heavily on oral testimony, particularly that of Mukoyi, who was the only party to testify in detail about her marriage to Charova.
Her account included vivid descriptions of life before and after the marriage, as well as her experiences following Charova’s death.
The court noted that her testimony was uncontested and compelling.
In contrast, Chipo Charova neither testified nor presented substantive evidence to challenge Mukoyi’s claims.
“The silence of the applicant in this matter is deafening, and it leaves the Zimbabwean customary wife’s version standing unchallenged,” Justice Monene said.
One of Chipo Charova’s key arguments was that the customary marriage lacked formal solemnisation under Zimbabwean law.
However, the court dismissed this claim by referring to Section 68(3) of Zimbabwe’s Administration of Estates Act, which explicitly recognises unregistered customary unions for the purposes of estate administration.
“The cultural milieu in which this marriage was conducted cannot be ignored,” the judge noted.
“To do so would be to turn a blind eye to the realities faced by many in our region.”
In nullifying the civil marriage, the court cited inconsistencies and unanswered questions that undermined its legitimacy.
Justice Monene described the union as raising “seriously eyebrow-raising questions,” and observed that “this ‘civil’ marriage, even when viewed in isolation, falls under the weight of its own oddities.”
Chipo Charova also claimed the court had misdirected itself by blending Zimbabwean and South African legal frameworks.
That argument was firmly rejected.
Justice Monene stressed that cross-border cases often require a synthesis of different legal systems in order to reach just outcomes.
“It is not a matter of choosing one jurisdiction over the other,” he said.
“Rather, it is about ensuring that justice is served within the unique contours of each case.”
Another point of contention was jurisdiction. Chipo Charova argued that South African courts lacked the authority to rule on a Zimbabwean marriage.
Justice Monene dismissed this as “a non-starter,” emphasising the South African court’s duty to adjudicate matters involving estates located within its territory.
“To suggest otherwise would amount to a Pontius Pilate approach — washing our hands of a matter that cries out for judicial intervention,” he said.
The judgment also tackled the broader legal significance of the case.
While acknowledging its novelty, Justice Monene cautioned that this alone was not grounds for an appeal.
“Courts of appeal are not meant to be burdened with matters that lack a sound rational basis for success,” he said.
“If higher courts are to engage with such issues, it must be through proper channels, not through applications that fail to meet the threshold for leave to appeal.”
In his final ruling, Justice Monene dismissed the application for leave to appeal and ordered the applicant to pay the full costs of the proceedings, including legal fees on a scale B basis.
“Justice must be done, and it must be seen to be done,” he said.
This landmark ruling marks a significant moment in the evolution of South African jurisprudence, particularly in the context of cross-border customary marriages.
It reaffirms the courts’ growing willingness to integrate cultural traditions within modern legal systems, without compromising the principles of justice.
As Justice Monene aptly put it, “Courts are steeped in the realm of facts and law — not in the prophetic or the speculative. Our duty is to render justice firmly grounded in the realities before us.”
Peter Tanyanyiwa