MAKONESE J: The appellant
is a retired soldier. On 30 January 2015 he filed an application for
a declaratory order with Magistrates' Court at Masvingo. The relief
sought in that application was in the following terms:
“1. Luckson Mateure is the
lawful owner of Mateure homestead and fields in Gono Village, Chief
Sumba, Chikavu, Chekai Area, Masvingo Rural District.
2. Luckson Mateure is entitled to
do any activities including farming at the said homestead.
3. that the respondent pays the
costs.”
The appellant's claims were
dismissed by the magistrate in a brief judgment as follows:-
“Application for a declaratory
order dismissed. The reasons are that an application for a
declaratory order is unknown in the Magistrates' Court. Further,
the applicant's failure to highlight in terms of which law the
application is made makes the situation worse. The Magistrates'
Court is a creature of statute and where an application like this one
is not made in terms of the Magistrates' Court Act or the
Magistrates' Court Civil Rules, this court lacks jurisdiction to
entertain such application.”
Aggrieved by the decision of the
Magistrates' Court the appellant has now noted an appeal against
that decision to this court. The appeal is anchored on the following
grounds of appeal:-
“1. the court erred in
concluding that the Magistrates' Court lacked jurisdiction to
entertain an application for a declaratory order.
2. the court erred in not
considering the application for a declaratory order by the appellant.
3. wherefore appellant prays that
the ruling by the court a
quo be set aside and
be substituted by an order that the court a
quo has the
jurisdiction to consider applications for declaratory order and the
court a quo
must consider the appellant's application.”
Factual Background
The appellant contended in his
application before the Magistrates' Court that he was allocated a
piece of land by the village head, with the permission of Chief
Shumba Chikava Chekai. Appellant then constructed a homestead for
his family. The homestead comprised a five roomed house, a two roomed
flat roofed house under zinc, and cattle pens. The applicant averred
that he regards the property in question as his only permanent home.
The appellant indicated that he had been welcomed by the local Chief
in a letter dated 17th
June 2012.
A dispute arose between the
appellant and respondent.
The respondent claims that the
land upon which the appellant erected his homestead belongs to his
late brother Samson Chidumwa. This led to confrontation between the
parties. Both appellant and respondent claim that the piece of land
belongs to them. The village head failed to resolve the matter
resulting in the matter spilling into the courts. The appellant
approached the Magistrates' Court seeking a declaration that he was
the lawful owner of the land in question.
Whether the Magistrates'
Court has jurisdiction to grant an application for a Declaratory
Order
The issue for determination by
this court is simply whether or not the Magistrates' Court is
empowered to grant a declaratur.
Appellant's counsel Mr Mandipa
argued that in terms of section 85(1) of Constitution of Zimbabwe
(Amendment) No. 20, 2013, this provision not only brought additional
rights and liberties but it clearly empowers every court to make a
determination on these rights and liberties whenever they are
infringed or are likely to be infringed.
Section 85 of the Zimbabwe
Constitution provides as follows:-
“Enforcement of fundamental
human rights and freedoms
(1) Any of the following persons,
namely;
(a) any person acting in their
own interests;
(b) any person acting on behalf
of another person who cannot act for themselves;
(c) any person acting as a
member, or in the interests, of a group or class of person;
(d) any person acting in the
public interest;
(e) any association acting in the
interests of its members;
is entitled to approach a court,
alleging that a fundamental right to freedom enshrined in this
chapter has been, is being or is likely to be infringed, and the
court may grant appropriate relief, including declaration of rights
and an award of compensation.”
It was argued on behalf of the
appellant that the right to convene proceedings under subsection (1)
of section 85 gave authority to any court, including the Magistrates'
Court to grant an order for a declaratur. It was further argued that
before the advent of the new Constitution, only Superior Courts were
seized with the jurisdiction to hear an application for a declaratory
order. Appellant's counsel argued that the position changed by
virtue of section 85 of the Constitution and that any court can make
a determination regarding the rights and liberties of any person,
including the Magistrate's Court.
The appellant's case is
predicated upon the assumption that section 85 of the Constitution
now takes away the power conferred by the High Court in terms of
section 14 of the High Court Act (Chapter 7:06). That assertion
cannot be a correct interpretation of the law. Section 14 of the High
Court Act specifically provides as follows:-
“The High Court may, in its
discretion at the instance of any interested person enquire into and
determine any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon such determination.”
I am not persuaded that section
85 of the Constitution confers any rights upon the Magistrates'
Court to grant orders for a declaratur. In the first instance, there
is no evidence on the record that the applicant was alleging
infringement of a fundamental right.
In my view for any party to
resort to the provisions of section 85 of the Constitution, he must
assert infringement of a fundamental right. Section 86 deals with
limitation of rights and freedoms and stipulates as follows:-
“(3) No law may limit the
following rights enshrined in this chapter and no person may violate
them:-
(a) the right to life except to
the extent specified in section 48.
(b) The right to human dignity.
(c) The right not to be tortured
or subjected to cruel; inhuman or degrading treatment or punishment.
(d) The right not to be placed in
slavery or servitude;
(e) The right to a fair trial.
(f) The right to obtain an order
of labeus corpus
as provided in section 50(7)(a).”
It seems to me that the appellant
attempted to assert his rights to a piece of land allocated to him by
the chief. I am of the view that the appellant is trying to stretch
the application of the provisions of section 85 of the Constitution a
bit too far. The appellant's attempt to bring the dispute under the
umbrella of fundamental rights is not supported by the facts and the
law. The dispute between the appellant and the respondent is simply
over who should occupy the disputed land. These disputes are common
in most communal lands, and even in land that has now been acquired
under the land reform programme. I therefore make the finding that on
the facts on record no issue of the infringement of a fundamental
right exists.
Now, dealing with the issue of
whether the Magistrates' Court has, the jurisdiction to entertain
let alone grant declaratory orders, there can be no doubt the
Magistrates' Court has no power to issue declaratory orders.
The learned magistrate in the
court a quo
was correct when he dismissed the application on the grounds that he
had no jurisdiction to deal with the matter. The High Court is
empowered in terms of section 14 of the High Court to make
declaratory orders. The Magistrates' Court is a creature of
statute. It operates in terms of the powers conferred upon it by the
legislature. The Magistrates' Court cannot arrogate to itself
powers that are not conferred upon it by statute.
I must observe here, that the
issue of the monetary jurisdiction of the Magistrates' Court was
not ventilated in the proceedings in the court a
quo. A five roomed
house and a two roomed flat roofed house in a rural setting could
very well exceed a value of $10 000. On that basis alone, the
Magistrates' Court would not be empowered to deal with the mater.
The issue of the power of the
High Court to grant declaratory orders was canvassed in the case of
AGRIBANK
v Machigauta &
Another 2008 (10) ZLR
244 (S), where GARWE JA, stated at page 248F as follows:
“The
above case does not in fact support the appellant's contention that
the High Court has no jurisdiction to hear the application. To the
contrary the case is authority for the proposition that the High
Court retains its original jurisdiction to grant declaratory orders,
even in labour disputes.”
In the case of Johnsen
v AFC
1995 (1) ZLR 65, GUBBAY
CJ had the occasion to consider when a declaratur can be granted. He
stated at page 72E-F as follows:
“The
condition precedent to the grant of a declaratory order under section
14 of the High Court Act 1981 is that the applicant must be an
“interested” person in the sense of having a direct and
substantial interest in the subject matter of the suit which could be
prejudicially affected by the judgment of the court. The interest
must concern an existing future or contingent right. The court will
not decide abstract, academic or hypothetical questions unrelated
thereto.”
I am not inclined to agree that
the appellant established that the Magistrates' Court has
jurisdiction to hear an application for a Declaratory Order. That
right is vested in the High Court in terms of section 14 of the High
Court Act. The appellant did not point to the violation of a
fundamental right in terms of the Constitution. In any event section
85 of the Constitution does to give the Magistrates' Court the
power to deal with applications for declaratory orders.
The appeal clearly has no merit.
In the result, the appeal is hereby dismissed.
Mathonsi J ………………………………… I agree
Gundu & Dube c/o Dube-Tachiona & Tsvangirai,
appellant's legal practitioners
