GUVAVA J: This is an appeal against a judgment by the
Mutare Magistrates' Court delivered on 16 June 2009. The appellant appeals only
against the award made in relation to the immoveable property. In the grounds
of appeal the appellant attacked the magistrates' findings that she was only
entitled to a 5% share in the property on the basis that he did not properly
take into account her direct and indirect contributions and the length of her
"marriage".
The facts giving rise to this appeal may be
summarized as follows:
The parties
entered into an unregistered customary law union in 1996. Two children were
born out of this union. An immoveable property as well as various movables were
purchased by the parties during the period that they lived together. In 2007
the parties commenced to live apart because of differences which had arisen in
their relationship. A full trial was conducted before the trial court and an
order was made in the following terms:
“1. By consent a decree of divorce
is hereby granted.
2. By
consent the plaintiff Plaxedes Mukondo is awarded custody of the minor children
Nyaradzo Zengeni and Rutendo Zengeni subject to the defendant's reasonable
rights of access over every school holiday.
3. Of the moveable property of the marriage, the
plaintiff is awarded all the property in her particulars of claim except the
upright refrigerator, the double bed, wooden chairs and the sofas which are
awarded to the defendant being property he acquired by the defendant prior to
his marriage to the plaintiff.
4. Of the immoveable property known as 1392
Chikanga 1, Mutare the plaintiff is awarded 5% of the total value of the
immoveable property and the defendant is awarded the remaining 95%. The value
of the house is to be assesses by an evaluator mutually agreed upon by both
parties and each party is to contribute 50% towards the cost of evaluation.
Either party can buy the other out in an amount equivalent to the percentage
awarded by the court of the cost of the immoveable property.
5. Each party to bear its own
costs.”
In
this case both legal practitioners, properly in my view, conceded that that the
appeal should be allowed and the judgment of the court a quo set aside for the reasons set out below. It is for that
reason that I will not dwell on the merits of the appeal as had been raised in
the appellant's grounds of appeal.
This
appeal serves to highlight once again the errors which are made by trial
magistrates when dealing with cases involving an unregistered customary law
union. The first error related to the recognition of the customary union as a
valid marriage. In terms of s 3 of the Customary Marriages Act [Cap 5:07] no marriage contracted in accordance to customary law shall be
regarded as valid. The relevant provision is as follows:
"3. Marriages not to be valid unless
solemnized
(1) Subject to this section, no marriage contracted according
to customary law, including the case where a man takes to wife the widow or
widows of a deceased relative, shall be regarded as a valid marriage unless -
(a) such marriage is solemnized in terms of this Act; or
(b) such marriage was registered under the Native
Marriages Act [Cap 79 of 1939] before
1st January 1951; or
(c) such marriage was contracted before 1st
February 1918; or
(d) being a marriage contracted outside Zimbabwe,
such marriage is recognized as a valid marriage in the country in which it was
contracted.
(2) A
marriage contracted according to customary law on or after 1st
February 1918 and before the 1st January 1951, which was not
registered under the Native Marriages Act [Cap
79 of 1939] shall subject to subsection seven, be regarded as a valid
marriage."
There
is no evidence on the record that the parties' marriage fell within the ambit
of this provision. It should therefore not have been considered as a valid
marriage. The parties in this matter led evidence on the breakdown of the marriage
as if it was a valid marriage and prayed for a decree of divorce which was
granted by the court a quo. This in
my view was a clear misdirection by the trial court.
The
second error related to the fact that although the parties stated that general
law principles should apply to their case no recognized cause of action was
pleaded in their papers. I can do no better than refer to the case of Feremba v Matika 2007 (1) ZLR 337 where MAKARAU JP (as she then was) stated
as follows when faced with a similar matter:
“I
repeat that exhortation herein to all trial magistrates before whom a claim as
the one in this appeal comes. It is this; where one party to an unregistered
union seeks to have the joint estate distributed before a Magistrates Court, a
justification for not applying customary law must be made and accepted by the
court using the choice of law considerations listed in section 3 of the
Customary Law and Local Courts Act [Chapter 7:05]. When general law is the
correct choice, then a recognized cause of action must be pleaded. Such a cause
of action may be unjust enrichment, a tacit universal partnership or joint
ownership. An averment merely to the effect that the parties were in an
unregistered customary union is not sufficient to found a cause of action at
general law. Trial magistrates must be wary of this procedural aspect of the
matter.”
In
this case the particulars of claim confuse a marriage and a customary union and
use the terms interchangeably throughout the pleadings. The parties stated in
their pleadings that the application of customary law to their case would cause
an injustice and asked the court to apply the general law. However they then
failed to set out the bases of the claim under general law. The court a
quo, in its judgment, having realized the deficiency in the claim before it
sought to introduce a cause of action on behalf of the plaintiff. This was
misdirection by the trial court and I again urge both legal practitioners and
trial magistrates to ensure that where they are dealing with an unregistered
customary union and the parties wish general law principles to apply to their
case, they are proper pleadings upon which an award can be made.
The
third error related to the issue of jurisdiction. Where the court determines
that it is just to deal with the distribution of assets in a customary union in
terms of the general law then the ordinary monetary jurisdiction for that court
applies. No evidence was led in this matter to show the monetary value of the
property which had accrued to the parties during the course of their union. In
my view however the fact that the property includes an immovable property would
probably place it beyond the magistrate's monetary jurisdiction. In terms of
the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules 2009
published in SI 21of 2009 on 6 March 2009 the monetary jurisdiction for civil
claims in the magistrate's court was set at US$2 000-00. I do not believe that
that amount would have been sufficient to cover the value of the immoveable
property in question as well as the long list of movables which were set out in
the appellant's particulars of claim.
Accordingly
for the above reasons I make the following order:
1. The appeal is allowed.
2. The order of the court a quo is hereby set aside.
3. There shall be no order as to cost.
MAWADZE J: I
agrees …………………………….
Bere Brothers, appellant's legal practitioners
Maunga Maanda & Associates, Respondent's Legal Practitioners
