The late Ntongayabo Abel Ngwenya
was a polygamist who was married to both the appellant and the second
respondent in terms of the Customary Marriages Act [Chapter 5:07], he having
married the second respondent in 1952 and the appellant, customarily, in 1970,
before registering that marriage in 1997. He died in Bulawayo in 2008 at the
age of 78 whereupon his estate was registered with the Additional Master and
the first respondent, his son, with the second respondent, was appointed
executor by Letters of Administration issued on 16 September 2008.
The first respondent was
dishonest in the administration of the estate in that he and the second
respondent did not disclose the existence of the appellant as the second wife and
sought to appropriate the entire estate to themselves.
When she discovered this, the
appellant brought an application in the court a quo seeking an order
reversing the fraudulent process of winding up the estate. The trial magistrate,
having heard the application, referred the matter to this court for the
proceedings to be quashed and the matter was placed before me. On 5 November
2010 I issued a review minute which reads:
“In light of the findings of the
magistrate, I direct as follows;
(1) The entire proceedings and
the winding up of the estate late Ntongayabo Abel Ngwenya under DRBY322/08 and
everything done in terms of authority granted thereunder including the transfer
of House No.14/412 Mpopoma, Bulawayo to the name of Rhoda Ngwenya be and is hereby
set aside.
(2) The estate of the late
Ntongayabo Abel Ngwenya should be reopened and its administration be commenced
afresh to take into account the interests of all concerned.”
Having quashed the proceedings,
the court a quo was required to commence the proceedings afresh.
It is not clear what happened
thereafter but the record does not contain any fresh hearing at all. No
evidence was led by the parties concerned but out of nowhere the trial
magistrate delivered a ruling on 2 December 2010 in the following;
“After hearing both parties,
including family members from both litigants, it has been agreed that the
applicant be allowed the use of the matrimonial house for a period of one year
while she builds herself a homestead in the rural home or acquires alternate
accommodation as the urban matrimonial home should now be shared between the
applicant and respondent. The sharing ratio would be two fifths and three
fifths. The applicant (Essie Ncube) gets two fifths whereas the respondent (Rhoda Ngwenya) gets three fifths. This is an ex
tempore ruling.”
Unfortunately, there is no record
that the learned trial magistrate heard the parties as alleged in his ruling
nor that the parties consented to the order that he made. The situation is made
worse by the fact that the learned magistrate did not give reasons for arriving
at a share of 40% to the appellant and 60% to the second respondent.
The failure to give reasons for
the decision raises the possibility that the magistrate did not apply his mind
to the case. There is always a need for judgments to be reasoned and for the
reasons to be stated. Failure to give reasons is, in my view, a gross
irregularity. This is particularly so in a case such as the present where the
magistrate alleges that part of the order made was by consent and yet that
consent is not on record. The judgment of the court a quo therefore
cannot stand.
In the result, it is ordered
that:
(1) The appeal succeeds to the
extent that the judgment of the court a quo is set aside.
(2) The matter is hereby remitted
to the Magistratse Court for a trial de novo before a different
magistrate.
(3)
Each party shall bear its own costs.
