KAMOCHA J: I
dismissed this application after hearing submissions from the contenstants and
indicated that my full reasons would follow in due course. These are they. The applicant in this matter was
seeking an order in the following terms:-
It is ordered that:-
(1)
Applicant's
appeal in case number HCA 43/04 be and is hereby reinstated.
(2)
Costs
of suit as against 1st respondent only if he opposes.”
The order that the applicant sought to appeal against was in
fact an order by consent granted by the Magistrates' (Customary Law) Court on
26 April 2004 and reads:-
“It is ordered by consent:-
(1)
That
the immovable property be shared as per the attached annexure “A” and
(2)
That
house number 3299 Cowdray Park, Bulawayo to be sold at market value and
proceeds shared equally between the two parties.”
A month later on 26 May 2006 the applicant had appeal papers
drafted which were filed at the beginning of June 2004. Her complaint was that the court a quo had erred at law in holding that
the respondent was entitled to half share of the proceeds of the sale of the
said property on the ground of an unregistered customary law union. In the alternative the order by consent was
assailed on the allegation that the trial court had erred on a point of law and
fact in holding that the respondent was entitled to a half share in the
immovable property on the ground of tacit universal partnership or unjust
enrichment because that was not the cause of action brought before him and in
any event he did not have the jurisdiction to deal with the matter based on
either of the said causes of action.
A year later on 15 April 2005 the applicant withdrew her
appeal. She, however, blames her
erstwhile lawyer Mr Mazibisa for the
withdrawal of the appeal which she alleges she always had wanted to
prosecute. She alleged that Mr Mazibisa had no mandate from her to do
that.
It was her assertion that the appeal had merit. She alleged that it was all her money which
was used to purchase the house in 1997 when she worked as a domestic
worker. She was financially assisted by
here employers to pay for the house. The
house was registered in her name. No
affidavit from her employers was filed to support her story.
The respondent only came into her life in 1999 long after she
had secured the house. She serviced the
mortgage single handedly. The best that
the respondent did was to go and deposit the money she gave him with Zimbabwe
Building Society. She complained
bitterly that the respondent who came into the picture long after the property
had been purchased should be unjustly enriched by an award of 50% of the
proceeds. He only lived with her for 4
years and some months. At the end of it
he got 50%. She concluded that he had
been unjustly enriched grossly.
It is observed that Mr Mazibisa
who is being accused of withdrawing the notice of appeal without the mandate of
the applicant did not file an affidavit explaining on whose instructions he did
that.
Respondent alleges applicant accepted she was customarily
married to him and he had even paid lobola to her parents in 1996. The parties met in 1993 when she was working
and staying at 14 Blank Close, Emerald Hill, Harare. They had been customarily married from 1993
to 2004. She later moved to Bulawayo
with her employers who settled at number 17 Westmount, Burnside, Bulawayo in
1994.
The lobola was paid to her parents at Phelela Village in
Tsholotsho in 1996.
He claims to have paid $7 000,00 to Zimbabwe Building Society
as deposit for the house. He also paid
$400,00 to connect electricity - $100 to the City Health Department. He used his payslip and had to write a letter
explaining that he was going to be responsible for the payment of the loan.
The respondent explained that he had to produce his payslip
because the Zimbabwe Building Society wanted to know how the mortgage was going
to be serviced. He alleged that it
became necessary that he had to write a letter explaining that he would be
responsible for the payment of moneys to service the mortgage bond although the
property was registered in the name of the applicant.
The respondent cannot be said to have been unjustly enriched
in the light of the sums of money that he paid.
The applicant does not say how much she paid towards the purchase of the
property. She alleged that she was
financially assisted by her employers without mentioning any figure. She did not produce evidence from her
employers confirming her story.
The applicant sought to appeal against a judgment granted by
the consent of both parties. The parties
approached the judicial officer and requested the court to record what they had
agreed on. They had agreed to share the
proceeds from the sale of the immovable property 50% each. Such a judgment is unappellable. See Calvera
& Ors v Mudzimunoera 1994 (2)
ZLR 371
The applicant has had a change of mind. She wants the consent judgment set
aside. She accused the presiding
magistrate of not giving her a chance to state her case. It is difficult to understand what she means
by that when the parties approached the court with a draft order which they
wanted the court to record into an order of court.
Similarly it is difficult to understand how her legal
practitioner would have withdrawn her notice of appeal without her
mandate. If he did not agree with her he
would have just renounced agency instead of withdrawing her appeal without her
authority.
Quite clearly her change of mind was an afterthought actuated
by greed. Her application to this court
is devoid of any merit and must fail.
The applicant seeks to appeal against a judgment which she
requested the court to grant. She went
on to accuse the presiding magistrate of having been biased against her as he
allegedly denied her an opportunity to state her case. He allegedly silenced her and went on to say
she was too talkative.
She did not end there but she went on to accuse her erstwhile
legal practitioner of withdrawing the appeal without her mandate.
This court must express its displeasure at such kind of
behavior by litigants. It must award
punitive costs to discourage them from resorting to such conduct.
In the result the order of this court is that the application
be and is hereby dismissed with cost on an attorney and client scale.
Dube-Banda, Nzarayapenga & Partners 1st
respondent's legal practitioners
