Civil
Appeal
MAWADZE
J:
This
is an appeal against the judgment by the Harare Magistrates' Court
delivered on 16 March 2010.
During
the hearing of the appeal both the appellant and the respondent
appeared in person and were not able to meaningfully address the
court on the legal issues involved in the matter. We are greatly
indebted to Advocate T
Mpofu
who agreed to be appointed amicuis
curiae
and submitted very useful and detailed heads of argument on the
pertinent legal issues involved in this matter.
The
facts giving rise to this appeal are as follows:
The
Magistrates Court, applying the provisions of the Domestic Violence
Act [Cap
5:16]
(hereinafter the DVA) granted an interim protection order in favour
of the respondent which was later confirmed on 16 March 2010. The
final protection order confirmed by the court a
quo
reads as follows:
“1.
the protection order be and is hereby confirmed as prayed for.
2.
The respondent (now the appellant) is interdicted from selling the
matrimonial home being number 50 Banister Road without the consent of
the applicant or a valid court order.”
Dissatisfied
with the court a
quo's
judgement in respect of item (2) above the appellant caused notice of
appeal to be filed with this court on 24 March 2010 on the following
grounds;
“Grounds
of Appeal
1.
The learned magistrate erred in referring to Number 50 Bannister Road
as the parties' matrimonial property when in fact the parties are
not legally married and the house was bought by the appellant before
he started living with the respondent in an unregistered customary
law union.
2.
The learned magistrate erred in interdicting the appellant from
selling the above mentioned house without the respondent's consent
or a valid court order when in fact the house in question is owned by
the appellant who bought the same before he started living with the
respondent.”
It
is common cause that the parties are not legally married. The parties
entered into a customary law union in 2002 and have been staying
together as “husband and wife” to date. Two children were born
out of this customary law union and the parties reside at Number 50
Bannister Road Braeside, Harare. The house in question is registered
in the appellant's name and was so registered on 31 December 1996,
about six years before the appellant and respondent entered into the
customary law union. It is not disputed that the appellant bought the
house in question through a loan advanced to him by his then employer
Reserve Bank of Zimbabwe.
The
appellant's position is that he is not legally married to the
respondent and that the respondent has no legal claim to the house.
On the other hand the respondent's contention is that when she
entered into a union with the appellant in 2002 the appellant had not
fully paid up the bond and was in arrears. The respondent alleges
that she helped with the payments of monthly instalments until the
bond was paid up in full in 2004. The respondent on that basis
alleges that she made significant contributions to the ultimate
acquisition of the house as she was at the material time gainfully
employed as a Sales and Marketing Manager by Netcom M Systems and
earned more than the appellant.
It
is common cause that the parties are experiencing serious marital
problems threatening to tear their customary law union apart. The
appellant is accused of infidelity, various forms of abuse and that
he harbours an intention to sell the matrimonial house, Number 50
Bannister Road, Braeside, Harare behind the respondent's back which
would result in the respondent and the two children being homeless.
The appellant on the other hand disputed the allegations of abuse and
instead accused the respondent of verbally and emotionally abusing
him to the extent that the respondent burnt his personal clothes in
2009, a fact not denied by the respondent. Instead the respondent
said she acted in that manner in August 2009 after the appellant had
brought a prostitute home in the respondent's presence.
The
court a
qou
shied away from dealing with the issue of the contribution of the
parties in the acquisition of the house in question but did find that
the appellant had breached the provision of the DVA in that he abused
the respondent and also wanted to sell the house in issue without the
respondent's consent. This is the basis upon which the interim
protection order was confirmed.
There
are only two issues which exercised our minds and therefore fall for
determination in this appeal. There are;
1.
Whether an appeal lies against the judgment appealed in view of the
fact that the DVA makes no provision in respect of appeals.
2.
The substantive correctness of the interdict granted against the
appellant barring the appellant from disposing of the so-called
matrimonial house, Number 50 Bannister Road, Braeside, Harare.
I
now proceed to deal with these issues;
Whether
or not an appeal lies against the judgment appealed?
It
is common cause that the DVA makes no provision in respect of
appeals. Part II of the DVA deals with protection orders. Section 7
deals with the application for protection order. Section 8 relates to
the determination of the application for protection order. Section 9
deals with interim protection orders and section 10 with the
confirmation of interim protection orders. Section 11 relates to the
contents of the protection order. Section 12 deals with the
revocation variation or extension of protection orders. Section 13
deals with issue of further copies of orders and warrants of arrest
and section 14 relates to enforcement of protection orders.
It
is clear from the provisions of Part II of the DVA that the DVA is
designed to afford the aggrieved party a robust remedy. One may
therefore be of the well founded view that such a robust remedy will
be undermined by noting of an appeal which would result in the
suspension of the order. In that vein one may therefore argue that
the legislature by not making provision in respect of appeals in the
DVA did intend not to provide such a right of appeal. On the other
hand one may also argue that any party should be afforded the
opportunity to appeal as a right and that if the legislature intends
to oust such a right then a clear provision in the Act should state
that an appeal will not suspend the operation of the order granted.
There
are similar provisions in section 27(3) of the Maintenance Act [Cap
5:09]
and section 92E(2) of the Labour Act [Cap
28:01].
Further
section 9 of the DVA provides in my view for drastic interim measures
of protection which may be granted ex
parte
and the respondent on being served with the interim order is
simultaneously served with a warrant of arrest which is conditionally
suspended upon compliance with the order.
I
make the point the DVA clearly ensures that a party who is genuinely
entitled to relief and requires the robust remedy is afforded that
provisional relief which by being interlocutory in nature is not
susceptible to appeal. It is the interim relief which is subsequently
confirmed or discharged on the return date after a due inquiry.
It
is my firm view that an appeal indeed lies against the judgment
appealed. I arrive at this conclusions on the basis of a number of
reasons.
The
DVA does not create a special or separate court which deals with
domestic issues but extends the jurisdiction in such matters to
ordinary courts. Section 2(1) of the DVA provides as follows:
“Section
2(1)
court
means – a Magistrate Court, High Court and for purposes of section
eighteen, a local court.”
The
net effect of the above definition is that in dealing with the
matters of domestic violence the Magistrates' Court, the High Court
and the local courts (in the restricted manner provided for) do not
exercise any special jurisdiction. All these three courts may be
approached in domestic violence matters as courts of first instance.
The only determinant factor a party should pay due regard to is the
issue of jurisdiction. As an example a matter which is outside the
jurisdictional threshold of the magistrate court must of necessity be
dealt with by the High Court. See also the specific provision in
section 18 of DVA dealing with the jurisdiction of local courts in
respect of domestic violence matters. It can therefore be inferred,
quite correctly, I believe, that the DVA reposes jurisdiction in such
matters in the ordinary courts as defined in section 2(1) and does
not create specialised courts. It logically follows therefore that
the appealability or otherwise of the judgment of the court cannot be
resolved with reference to the absence of an enabling provision in
the DVA because the DVA does not establish a separate court. The DVA
defers to the courts that are in existence hence one has to refer in
casu
to the provisions of the Magistrates Court Act which creates the
court as defined in section 2(1) of the DVA in particular section
40(2) of the Magistrates Court Act [Cap
7:10]
which provides as follows;
“Section
40(1)
…
(2)
Subject to subs (1) an appeal to the High Court shall lie against -
(a)
any judgment of the nature described in section eighteen or thirty
nine;
(b)
any rule or order made in a suit or proceeding referred to in section
eighteen or thirty-nine and having the effect of a final or
definitive judgement including any order as to costs;”
In
casu
the order granted by the Magistrates' Court upholding the
application for a protection order is in all material terms a
judgment in favour of the applicant. Such a judgment is appealable in
terms of section 40(2) of the Magistrate Court Act supra
which should be read together with the provisions of section 30(1) of
the High Court Act [Cap
7:06]
which deals with the powers of the High Court on appeal in civil
matters dealt with by the lower courts as provided for in the
relevant statutes.
It
is clear that the matter before us is a judgement of the court of the
magistrate. The matter as to what law the judgment applies is
irrelevant. What matters is that it is a judgment of the court of the
magistrate and such a judgment is appealable to this court in terms
of section 40(2) of the Magistrates Court Act supra
and section 30(1) of the High Court Act supra.
There is no law which bars the High Court from dealing with such an
appeal and I am fortified in this regard by the comments by GARWE JA
in Guwa
& Anor
v Willoughby's
Investments
(Pvt)
Ltd
2009 (1) ZLR 380 at 383 D-E in which the LEARNED JUDGE OF APPEAL
inter
alia
said:
“The
High Court, on the other hand, has jurisdiction to hear all matters
except where limitations are imposed by the law. In other words
whilst the Supreme Court may do nothing that the law does not permit,
the High Court may do anything that the law does not forbid.”
I
am also of the strong view that a right to appeal is an important
right which is protected in our law. I do not share the view that the
legislature would grant such immense powers to a Magistrate and make
their exercise immune from the interference by a process of appeal.
It is my finding therefore that this appeal is properly before this
court on account of the fact that an appeal lies against the judgment
appealed.
The
substantive correctness of the interdict granted
The
next issue to consider is whether the court a
quo acted
properly within the confines of the law in granting the order which
is the subject of appeal.
Section
3 of the DVA deals with the meaning of domestic violence and its
scope. The first point to consider is whether the selling or threat
to sale matrimonial property constitutes domestic violence. This
question is answered with regard to the provisions of section 3(1)(k)
which defines domestic violence as:
“3(1)(k)
the unreasonable disposal of household effects or
other property in which the complainant has an interest”
(underlining is mine)
In
terms of section 11 of the DVA dealing with the contents of a
protection order a protection order may where appropriate;
“11(1)(a)
prohibit the respondent from committing or enlisting the help of
another person to commit any act of domestic violence.”
In
casu
the court a
quo
could only competently grant the interdict if it was satisfied that
the applicant was engaged in unreasonable disposal of property in
which the respondent has an interest. This important point seems to
have eluded the learned magistrate who failed not only to consider
the nature of the relationship between the parties and the nature of
the interest the respondent may competently have at law in the
property involved. No inquiry in this regard was made and this is a
serious misdirection.
I
have already alluded to the nature of the relationship between the
parties and the property involved. The appellant and the respondent
are not legally married hence they may not be afforded the same
protection as is provided in respect of parties who are legally
married. A customary law union is not regarded as a valid marriage in
terms of our law and is only recognised for limited purposes provided
for through statutory provisions. To put it bluntly, the respondent
cannot regard herself as the appellant's wife at law. She cannot
competently sue for divorce and division of the matrimonial estate in
terms of section 5 and 7 of the Matrimonial Causes Act [Cap
5:13].
This
leads me to the next point.
The
property in issue even assuming that the appellant intends to dispose
of the same is registered in the name of the appellant. This aspect
would remain valid even if the appellant and the respondent were
legally married. The appellant has a deed of title. In Takafuma
v Takafuma
1994 (2) ZLR 103 (S) the Supreme Court said:
“The
registration of rights in immovable property in terms of the Deeds
Registries Act is not a mere matter of form. Nor is it simply a
device to confound creditors or tax authorities. It is a matter of
substance. It conveys real rights upon those in whose name property
is registered. See the definition of “real right” in section 2 of
the Deeds Registration Act [Cap
139]
(as it was). The real right of ownership, of jus
in re propria,
is “the sum total of all the possible rights in a thing”. See
Wille's
Principles
of South African Law 8
ed at 255.”
The
interdict granted by the court a
quo
ignores this basic principle and therefore falls on that simple basis
alone.
The
other misdirection on the part of the learned magistrate was the
failure to appreciate the fact that it is now trite law, even in the
context of a valid marriage, (in casu
it is even a customary law union) that a spouse whose name does not
appear on a deed of title does not have a legal interest in the
property before divorce. See Muzanenhamo
& Anor
v Katanga
1991 (1) ZLR 182; Dhlembeu
v Dhlembeu
1996 (1) ZLR 105 (S); Muganga
v Sakupwanya
1996 (1) ZLR 217 (S); Maponga
v Maponga
2004 (1) ZLR 63 (1), Muswere
v Makanza
2004 (2) ZLR 262 (H) and Kerenza
Mushati
v Luise
Kudakwashe Mushati
& 2
Ors
HH 225-11.
It
is clear from the facts of this case that the respondent has no legal
interest in the house in issue. There is therefore no valid basis
upon which the court a
quo
could have granted the interdict.
The
court a
quo
also failed to consider that it had no jurisdiction to interdict the
sale of the property in issue. As already said where on account of
jurisdictional limits the magistrates' court cannot deal with this
matter it has to refer the matter to the High Court and this is
precisely why the administration of the DVA is vested on the local
courts, the magistrate court and the High Court as courts of first
instance. Section 12 of the Magistrates' Court Act supra
deals with arrests and interdicts. Section 12(1) of the Magistrate
Court Act supra
provides as follows:
“12
Arrests and Interdicts
(1)
Subject to limits of jurisdiction prescribed by this Act, this court
may grant against persons and things orders for arrest tamquam
suspectus de fuga,
attachments, interdicts and mandamenten
van spolie.”
It
is therefore clear that the grant of an interdict by the court a
quo
is made subject to the limits of jurisdiction of the Magistrate Court
in civil matters.
In
casu
the value of the house is not even stated but it is common cause that
its value is way above the current monetary threshold of the
jurisdiction of the Magistrates' Court. What this means in simple
terms is that given that an interdict is only granted upon the injury
complained of being set out, it must follow that the injury concerned
must be capable of pecuniary evaluation before the court could come
to the conclusion that it has jurisdiction to stop the occurrence.
That is also the only way that makes the Magistrates' Court
different from the High Court in respect of the grant of interdicts.
The Magistrates' Court has no unlimited jurisdiction in issuing
interdicts. The court a
quo did
not establish the monetary component of the injury sought to be
interdicted in order to be satisfied as to whether it falls within
the jurisdiction of the court a
quo.
The value of the house is not ascertained but I am able to take
judicial notice that houses in Braeside, Harare are way above the
monetary jurisdiction of the Magistrates' Court in civil matters.
The court a
quo
therefore had no jurisdiction to grant the interdict and this is a
serious misdirection.
I
am therefore satisfied that there is ample basis to interfere with
the order of the court a
quo
in respect of the interdict as the order is patently incompetent and
upholding would result in a miscarriage of justice. This court once
made aware of such an incompetent order has the powers to set it
aside even in circumstances where this court may not be exercising
its appellate functions. This court has this power to interfere with
an irregular order. See Matanhire
v BP
Shell Marketing Services (Pvt)
Ltd
2005 (1) ZLR 140 (S) at 147 F-G. This principle is founded on the
basis that a court cannot give effect to a patent nullity.
Accordingly
for the above reasons I make the following order:
1.
The appeal is allowed.
2.
The order of the court a
quo in
para (2) relating to an interdict is hereby set aside.
3.
There shall be no order as to costs.
GUVAVA
J: agrees
Advocate
T
Mpofu,
amicus curiae
