MATHONSI J: The respondent issued summons out of the Gwanda
magistrates' court against the appellant to which was attached an affidavit
sworn to by herself and annexures to the affidavit listing property valued at
US$6730-00 acquired by the parties. In
the affidavit she alleged that she was customarily married to the appellant and
their union was blessed with 8 children.
The
respondent further stated in the affidavit that the appellant and herself had
separated 2 years earlier and she prayed that the court should divide the
property the parties acquired during the subsistence of the union.
The
appellant did not enter appearance to defend but somehow the parties appeared
before the trial magistrate and a kind of trial was conducted. During that trial the respondent gave evidence
under oath and even called a witness.
The import of her evidence was to the effect that she had married the
appellant in 1970 and they have 8 children together but the appellant chased
her away. While she set out the property
that they acquired together, no evidence was led at all as to how that property
was acquired and how it should be shared.
The
appellant, although allowed to cross examine the respondent and her witness,
was not accorded an opportunity to lead evidence himself. The trial magistrate went on to deliver
judgment in which she concluded:
“In
conclusion the court noticed that the two were married for the past thirty
years and they jointly acquired some property, though defendant says he still
loves plaintiff, the court noted that the two parties had been staying
separately for two years, the plaintiff(s) witness told this court that he even
tried to intervene but defendant showed no sign that he still loved his sister
and he was assisted by his (defendant's) son.
The court therefore found that it was just to have the two parties
sharing their property.”
She
went on to arbitrarily share the property equally between the parties. The appellant appealed against the judgment
of the magistrates' court on the following grounds:
“1. The trial magistrate
erred in ordering the division of 'matrimonial property' of the parties when
the parties where (sic) not married to each other in terms of the Customary
Marriages Act [Chapter 5:07] the only type of marriage which the magistrates
court has jurisdiction over.
2. In any case the alleged
division of property was not fair and equitable as it made awards in excess of
the property appellant owns.”
This
matter is fraught with procedural irregularities. The process filed and the manner in which the
trial was conducted means that it is a hybrid of trial action and application
procedure. A litigant cannot issue a
summons commencing action which is supported by affidavit as this is an
unacceptable mixture of procedure. There
is nothing in the record to suggest that any of the rules relating to the
filing of pleadings and the holding of a pre-trial conference were complied
with. The filing of an affidavit
suggests that application procedure was being resorted to but then the trial
court went on to take oral evidence.
Even
the hearing of oral evidence was not completed because the appellant, who was
defendant in the court a quo, was not allowed to lead
evidence. This was in clear violation of
the basic tenets of natural justice, in particular the audi alteram partem rule.
All
magistrates' courts are formal courts of record whose proceedings are governed
by set rules and established procedure.
These rules should be followed and anything done outside the rules is
susceptible of being set aside as being unprocedural. Mandava
v Chasweka HH 42/08 (as yet unreported) at page 2.
In
Kazuva v Dube HB 119/10 I had
occasion to comment at page 4 as follows:
“It
is clearly incompetent for the magistrates' court to invent a new procedure of
dealing with disputes which procedure is not provided for in the rules of the
court and is a mixture of summons action and application procedure. That procedure simply does not exist. The two procedures are mutually exclusive and
cannot be employed at the same time to resolve the same dispute.”
As
if that was not enough, the respondent sought a division of property on the
basis of an unregistered customary law union.
She did not plead any other recognisable cause of action like joint
ownership, tacit universal partnership, unjust enrichment and/or equity.
Unregistered
customary law unions are still not recognised marriages in our law and as such
section 7 of the Matrimonial Causes Act [Chapter 5:13] does not apply to
them. While the courts have always been
willing to assist women who find themselves in the situation of the respondent
and would readily divide property acquired during the subsistence of an
informal union, that can only be done where well-founded claims for a share of
the estate are made and a proper and recognisable cause of action is pleaded
and certainly not on the basis of the union per se. Feremba
v Matika 2007 (1) ZLR 337 (H); Jengwa
v Jengwa 1999(2) ZLR 121(H); Mtuda v
Ndudzo 2000(1) ZLR 710(H).
Section
11(b) (iv) of the Magistrates Court Act [Chapter 7:10] allows magistrates to
preside over divorce cases of persons married under the Customary Marriages Act
[Chapter 5:07] but it has no application on unregistered customary law unions.
As
stated by MAKARAU J. P (as she then was) in Feremba
v Matika (supra) at 340B:
“The
court has jurisdiction to apply customary law and can apply such law to the
distribution of the assets of the parties who were in such a union. If however the court for some legitimate
reason is not applying customary law, then two further issues arise. Firstly, for it to have jurisdiction, then
the value of the assets to be distributed has to be ascertained, for the
ordinary monetary jurisdiction of the magistrates court will apply. Secondly, for a claim based on common law, a
recognised cause of action must be pleaded.”
As
the existence of an unregistered customary law union does not on its own clothe
the magistrates' court with jurisdiction to distribute the property, it not
being a marriage, other recognisable cause of action should have been
pleaded. It was not.
In
my view the magistrate fell into error in dividing the property as if the
parties were married in terms of the Customary Marriages Act and also in not
addressing the issue of monetary jurisdiction if she felt that she had to deal
with the matter in terms of common law.
This coupled with the fact that the procedure for trial action was not
followed and the appellant was not even accorded an opportunity to lead
evidence means that the proceedings cannot be allowed to stand. The matter has to be remitted to allow the
court to comply with the rules and the law relating to such estates.
In
the result, I make the order that:-
1. The appeal is allowed to the extent
that the order of the court a quo is set aside.
2. The
matter be and is hereby remitted to the magistrates court for a trial de
novo before a different magistrate.
3. The
parties are required to file pleadings in terms of the rules and to hold a
pre-trial conference before the trial proper.
4. Each party shall bear its own costs.
Ndou
J agrees.....................................................................
Messrs
Tshakalisa c/o Moyo & Nyoni applicant's legal
practitioners
Zimbabwe Women Lawyers
Association, respondent's legal practitioners
