The
parties in this matter appeared before a magistrate in the Community Court. The
plaintiff was seeking a decree for divorce, custody and maintenance of the two
minor children and a share of the property acquired during the subsistence of
their unregistered customary law union.
The
plaintiff listed in her declaration the property purchased during the
unregistered union thus:
1.
House Number 5 Greystoke Road, Morningside, Bulawayo;
2.
House Number 5503, Luveve 4, Bulawayo;
3.
House Number 493 Elly Road, Killarney, Bulawayo;
4.
Mark II Toyota vehicle registration number ZW 006087;
5.
Mazda 323 Familia;
6.
3 bedroom suits;
7.
3 television sets;
8.
Sofas;
9.
Refrigerator;
10.
Stove; and
11.
Flea market stock
The
defendant, in his plea, raised a point in limine that the plaintiff's claim was
ill-founded and not based on law and further pointed out the value of the
property listed supra was in excess of the monetary jurisdiction of the
magistrate sitting as a Community Court. These points were raised at the
commencement of the trial.
There
can be no doubt that the listed property far exceeds the monetary jurisdiction
of the magistrate, in particular, the value of the three immovable properties.
The parties should have instituted their proceedings in the High Court in
respect of the distribution of the property. Since the union of the parties was
not registered, the Community Court can adjudicate upon the marital
relationship in terms of the proviso to section 16(1)(d) of the Customary Law
and Local Courts Act [Chapter 7:05]. Section 16(1)(b)(ii) of the Customary Law
and Local Courts Act [Chapter 7:05] prohibits the Community Court from dealing
with claims whose monetary value exceeds one hundred dollars ($100=). The
plaintiff should not have instituted the proceedings in that court. It is
specifically prohibited by law from doing so.
The
plaintiff's claim for the maintenance of the two minor children should have
been taken to the appropriate Maintenance Court.
After
the defendant had raised the above points in limine and sought for a ruling
from the Community Court, the presiding officer held the view that the
properties should first be evaluated before he could make an informed decision.
That in, my view, would not have been necessary at all because even the value
of the movables alone, without the three (3) houses, would far exceed a hundred
dollars.
The
parties, through the Clerk of Court of the Community Court, forwarded the
record of proceedings to the Registrar of this court to be placed before a
Judge for directives.
These
are they.
