The Limpopo High Court, sitting in Polokwane, also overturned the late soldier’s civil marriage to his second South African wife in the application. The court had been asked to decide whether a then 17-year-old who married the soldier in 1970 in terms of customary law in Zimbabwe is deemed to be legally married to him in South Africa.
The husband moved to South Africa in the 1980s and left his wife behind in Zimbabwe. He married another woman here, in terms of civil law. The first wife, who is now in her 70s, asked the court to declare her the executor of his estate and lawful wife.
The court was told that during the Rhodesian Bush War (1964-1979), the soldier, a black recruit to the then Ian Smith’s Rhodesian Army, married the then teenager 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 barracks or in the bushes. At the dawn of Zimbabwean freedom in 1980, the soldier was seconded to the South African Defence Force, which had defeated his home nation.
Having now somehow become a South African, he courted the second wife, also a soldier of Zimbabwean descent. They lived in Phalaborwa, Limpopo.
During that time, the soldier had also acquired property in Pretoria, where the first wife regularly visited. His second wife also mostly raised his two children born from his first wife here in South Africa. The applicant considered the second wife 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, Zimbabwe ancestral home. He had 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.
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 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.
The judge also frowned upon the fact that the second wife only obtained a marriage certificate after the soldier’s death, while the marriage 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.
