Customary law is still relevant in Zimbabwe to a lesser extent to aspects like when the parties have agreed to use customary law, in the issue of chieftaincy and when the court looks at the surrounding circumstances. It is important to first define what customary law is. Customary law is law which governs the way of life of African people in other words the law before colonialism. It is also important to note that there is what is called the dual legal system which makes customary law relevant in Zimbabwe. However, customary law is been disqualified largely by general law as the courts are applying general law instead of customary law, it is on the courts discretion to use customary law and even when the parties agree to use customary law the court can use general law in order to preserve justice, there are also statutes which regulate customary law and also customary law only apply to civil matters only and not criminal matters showing that, it is used in limited circumstances.
The fact that customary law is a source of law in Zimbabwe makes it relevant right from the start. In Zimbabwe there is also what is called dual legal system, making customary law to apply in Zimbabwe. According to Madhuku1 a dual legal system is when general law and African customary law apply side by side on given circumstances and this is proved by section 1922 of the constitution of Zimbabwe to clarify this one can argue that, the section incorporates section 893 of the old constitution of Zimbabwe when it states that the law to apply is the law on the day of swearing of the President. The Customary Law and Local Court Act (7:05)4 states that, customary law applies in civil cases only and not criminal cases as provided by section 3 of the Act, so this shows that, customary law is still applying in Zimbabwe. This is shown in the case of S v Matyenyika and Another5 Malaba J made it clear that, customary law was unable to decide whether the crime of incest had been committed and it would have not influenced the prosecution in deciding whether to charge the accused with the crime of incest.
Having said that, it shows that customary law is only relevant to civil matters and not criminal, but this shows that it is relevant in Zimbabwe because it is still applicable in the civil disputes. Furthermore, customary law applies even if the parties have not agreed but it is used to uphold justice having regarded the surrounding circumstances. Madhuku6 is of the opinion that, the Act requires the courts to consider the surrounding circumstances which are the parties’ knowledge of customary law, the life, and subject matter of the case and the closeness of the case to general or customary law. In the case of Lopez v Nxumalo7 the appellant who was a Portuguese white farmer had seduced the respondent’s, so the respondent was suing the appellant for seduction damages basing with the customary law and the appellant then applied to the Supreme Court because he had disagreed with the community court and he argued that, he knew no African customary law so he wanted the court to use general law but, the Supreme Court refused to use general law and they used customary law as it was decided by the community court.
Therefore the court applied customary law taking into account the surrounding circumstances of the parties, here the court saw that the way of life of the respondent and her daughter was regulated by customary law and the place where the appellant was living the mainly known law was customary law so the fact that he did not know customary law was due to ignorance. Hence this shows that customary law is still relevant in Zimbabwe. In the issue of chieftaincy customary law applies as the Constitution and the Customary Law and Local Courts Act incorporates it. Section 2818 respects the roles and functions of the chiefs as they are given the power to resolve disputes amongst the people in their community. This shows that customary law is still relevant as the constitution recognize the power of the traditional leaders at the same time granting them rights to take measures to promote customary law.
However, even if the parties surrounding circumstances are linked to customary law the courts may use general law to promote justice showing that, customary law is now not useful in Zimbabwe. In the case of Chapeyama v Matende and another9 The Supreme Court refused to apply customary law as it promoted injustice, here parties were married under the customary law but, not registered under the Customary Marriages Act (5:07). The parties had lived together for seven years and had two children and they had acquired property together including a house in Harare and it was registered in both their names. The husband terminated the marriage and did not want to share the property with his wife, because the parties were married under the customary law their duties were governed by customary law.
Hence in this case the wife was entitled to the Maoko and Amai property but, here the court applied the general rule as customary law led to injustice hence applying the clause on chapter 3 (1)10 which says, “Unless the justice of the case otherwise requires,” in other words it means that whether there is a provision which states that customary law should apply it won’t apply if it does not preserve justice in the discretion of the courts, therefore customary law is of no use. In a similar case of Mtuda v Ndudzo11 the parties were also married under customary law but their union was unregistered. Garwe J refused to apply customary law as he used a principle of general law of unjust enrichment. Basing with the above argument one can concluded that, here the parties had the knowledge of customary law and the parties were married under the customary law marriage instead of applying customary law the judges applied general law hence showing that customary law is subject to general law.
To add more, the Customary Law Act (chapter 7:05) (2) recognizes the work of chiefs, but the courts are disqualifying the roles of these chiefs showing that customary law is of no use in Zimbabwe. This aspect is sufficed by the case of Nyikadzino v Morgan Tsvangirai12 here Tsvangirai was been accused by chief Negomo for marring in November a sacred month under customary law. Negomo saved the summons himself on Tsvangirai to attend court at a named business centre and Tsvangirai had to pay for the appeasement of the spirits, but Tsvangirai did not attend the court and judgment was given against him. The High Court set aside the summons on the bases that chief Negomo was both the plaintiff and the preceding officer and that were not saved by the messenger of the court. The court also said Gweshe business center was not a place sitting for a court in terms of 2002 legislation authority, so Negomo lost the case.
Referring to the above case under customary law the chief have the power to be the plaintiff and the preceding officer and also the court is sate on an open place under customary law, but here the courts are been disqualifying the roles of the chiefs as the court has said the proceedings made by Negomo were void ab intio. Therefore this shows that customary law is of no use in Zimbabwe. More so, customary law is subject to the general law making it useless in Zimbabwe as statutes disqualifies some aspects of customary law like the father cannot sue for seduction damages for his daughter who has reached the legal age of majority which is in this case 18 years. This is evidenced by the case of Katekwe v Muchabayiwa13 the Supreme Court held that, the father of had no longer had the rights to sue for seduction damages under customary law in respect of his daughter when the African female would have reached the legal age of majority. And the Legal Age Majority Act gave them status on reaching 18 and therefore given rights they could not enjoy under customary law.
To clarify this point one can argue that, the statute states that when a citizen reaches 18 he or she has the right to do what pleases him or her so taking this provision it limits the power of the father which he had under customary law which was law in the pre-colonial period. Therefore this shows that customary law has outlived its usefulness in Zimbabwe. Furthermore, customary law does not apply in criminal cases making it less useful in Zimbabwe. The Customary Law and Local Courts Act chapter (7:05)14 indicates that customary law is only applied in civil cases which is stated in section (3) of the Act. With this provision one can note that already customary law has been sanctioned to apply in criminal cases, so this means that even if the people are governed by customary law due to their knowledge, choice of law which the parties have agreed on the customary law will not apply if it is a criminal case.
This show that customary law is limited right from the start and its application is limited. In other words this means that general law is the most relevant law in Zimbabwe. This is supported by the case of S v Matyenyika and Another15 Malaba J held that customary law was not allowed to decide whether if the crime of incest had been committed because customary law does not apply to criminal cases. This show that customary law is subjective to general law so,it means that the courts can use general law instead of customary law. To add more this shows that, customary law cannot even be used to decide if the wrong committed is crime, under customary law incest is unacceptable but by the virtue of it been a criminal matter customary law is out. Therefore one can conclude that customary law is of no importance in Zimbabwe when it is subject to general law.
More so, customary law does not apply in many cases like if the parties have not agreed and also if the person is not an African. Bennet16 says customary law only applies between tribesmen and in the case of non tribesmen it only applies when the parties agree and if it is relevant from the given circumstances. This shows that African customary law is not applicable to people who are outside Africa when they are in Zimbabwe showing that it has no use because the law that will apply to these people is General Law. To make matters worse it does not apply to the tribesmen if they are not in agreement and also if the surrounding circumstances make it irrelevant it won’t apply. Hence customary law is of no use as it limits itself right from the start. In conclusion, customary law is relevant in Zimbabwe to a lesser extent as customary law is a source of law in Zimbabwe, section 3 of the Customary Law and Local Courts Act (7:05) shows the circumstances which customary law can apply and also that Zimbabwe is a dual legal system as provided by the Constitution on section 192 which incorporates section 89 of the old constitution in relation with the date of swearing of the president.
It also apply if the parties agree to use African Customary law in implied or expressed terms as some would have married under the Customary Law Marriage Act (5:07). However customary law is of no importance in Zimbabwe as it does not apply to criminal cases, the clause in the Customary Law Act and Local Courts Act (7:05) (3) which says, “Unless justice of the case otherwise requires,” this shows that it is on the discretion of the courts to apply customary law or not showing that the application of customary law is very limited because even parties have agreed but, if it is unjust to use customary law the courts will use general law. In other words customary law is subject to general law. There are also statutes which disqualify the application of customary law like the Legal Age of Majority Act which disqualifies the power of fathers under customary law. Hence one can conclude that in Zimbabwe customary law largely does not apply.
Constitution of Zimbabwe Amendment (No.20) Act 2013
Bennet T,W, Application of Customary Law in South Africa
Madhuku L, An Introduction to Zimbabwean Law, Weaver Press, Harare, 2010