MAWADZE J: This
is an appeal against the judgment of the Goromonzi Magistrate Court delivered on 4
June 2010. The appellants appeal against the entire judgment in which the order
sought by the appellants in the court a
quo was not granted.
The grounds of appeal against the
entire judgment are outlined as follows;-
"The learned
Magistrate erred in granting the respondent application without considering the
following facts:
·
The deceased one James Bvisai never owned any
beasts in his lifetime and he was given the cattle in question for safekeeping.
·
So taking into account the above the cattle
should not form part of the deceased estate.
·
The Learned Magistrate erred in considering the
respondent in this matter's side of the story without taking into consideration
that there are witnesses to the Appellant concession (sic)".
The Appellants were not represented in
the court aquo just like during the
hearing of this appeal. This explains
probably why the grounds of appeal are not only poorly drafted but fail to
capture the cause of action in the court aquo.
The heads of argument and the supplementary heads of argument filed by the
appellants are difficult to comprehend and are a mere repetition of the
evidence purportedly led in the court aquo.
Be that as it may, the bottom line is that this appeal is sorely based on a
dispute of fact rather than law. A brief factual background giving rise to this
appeal is in order.
Both appellants are siblings and
related to the respondent who was married to one James Bvisai who is now
deceased. The late James Bvisai is an elder brother of both appellants and he
died intestate on 12 November 2002. The
late James Bvisai had entered into an unregistered customary law marriage with
the respondent in 1995 which was only dissolved as a result of James Bvisai's
demise.
The dispute between the parties came
to the fore when the respondent proceeded to register the estate of her late
husband James Bvisai in terms of the prevailing customary law at Goromonzi
Magistrate court on 31 July 2009. In fact the dispute is solely in respect of the
7 herd of cattle which form part of the late James Bvisai's estate. The
respondent as per minutes of the edict meeting held on 31 July 2009 in DR 02109
was appointed the executor of the estate of her late husband. The minutes indicate that the appellants
together with one Chakanetsa Elias Pamire attended the edict meeting. The only
valuable assets of the estate of the late James Bvisai as is reflected
inventory filed of record (pp 28-29) on 31 July 2009 is the 7 herd of cattle
valued at US$550-00. The 7 herd of
cattle are registered in the stock card ( pp 35 of the record ) belonging to
the late James Bvisai.
As per the reasons for the judgment
by the court a quo (pp 5-9 of the
record) the appellants were aggrieved when respondent included the 7 herd of
cattle as part of the estate of the late James Bvisai. As a result the appellants brought an
application in the
court a quo against the respondent which they
sought an order excluding the 7 herd of cattle from the estate of the late
James Bvisai. The basis for this application in the court a quo was that as per
appellants the 7 herd of cattle belong to their own father one Bvisai Rusike
who died on 14 April 1978. The appellants wanted the respondent to be ordered to
sign all papers and documents necessary to transfer the 7 herd of cattle into
Rusike family's name and that she cedes all her claim and rights to the 7 herd
of cattle to Rusike family. ( whatever that means.)
In
order to resolve this dispute the court aquo
heard evidence from the appellants Augustine Rusike and Regis Rusike together
with appellant's elder brother Phineas Rusike and appellant's sister Magreth
Hore and one Charles Muzuva a relative. They gave evidence in support of the
application filed by the applicants. The
respondent testified and did not call any witnesses.
The thrust of the appellants'
evidence is that the 7 herd of cattle does not belong to the estate of the late
James Bvisai as these cattle belonged to their late father one Bvisai Rusike
and were only given to James Bvisai for safekeeping after the death of their
father Bvisai Rusike. On the other hand the respondent's contends that the 7
herd of cattle belonged to her late husband James Bvisai and should therefore
be part of his estate.
In order to appreciate the findings
made by the court a quo one has to briefly summarise the evidence led from each
witness moreso when the dispute in this matter is one of fact. I turn briefly
to the evidence of each witness.
AUGUSTINE RUSIKE
He is a brother to the late James
Bvisai and is one of the appellants. According to Augustine Rusike all the 7
beasts registered in the stock card belonging to the late James Bvisai do not
belong to the late James Bvisai. Augustine Rusike said when his late father
passed on the beasts were not shared but given to an elder brother Phineas
Rusike to keep
them in trust of
the family. The eldest son then James Bvisai was working in Harare. He said after the late James Bvisai
retired he settled at the rural home and as the eldest son he was handed over
the cattle by Phineas Rusike also for purposes of holding them in trust of the
whole family although he registered them in his name. Augustine gave a history
of how the cattle in issue were first acquired. He said their late father owned
16 herd of cattle were all later taken by the late James Bvisai who was also
given another 10 herd of cattle by their aunt for safekeeping. According to
Augustine Rusike the late Bvisai never purchased any beast throughout his
lifetime and was never given any beast in his personal capacity even as a token
of appreciation. by their aunt. He said when James Bvisai passed on in 2002 one
of the beast in his custody was slaughtered at the funeral and another later at
his memorial service.
He said
respondent is fully aware that her late husband never owned any cattle and that
their brother Regis Bvisai is actually paying the cattle tax for the 7 herd of
cattle in issue.
Under cases examination Augustine
Rusike was not able to give any reason as to why the 7 herd of cattle remained
in respondent's custody after the death of her husband in 2002 until in 2009 a
period of 7 years when this dispute arose. Regis Rusike on the other hand did
not confirm paying the cattle tax. No reasonable answer was given as to
why Regis Rusike
would not have the 7 herd cattle of cattle in his name if he was paying the
cattle tax and using the cattle. Augustine Rusike's evidence did not explain
why the Rusike family did not take the cattle in issue from respondent's
custody soon after the death of her husband in 2002.
REGIS RUSIKE
He is also a brother to the late
James Bvisai and one of the appellants. His evidence was to the effect that the
late James Bvisai never bought any cattle during his lifetime and that none was
given to him even as a token of appreciation by their aunt. He said all the 7
herd of cattle now in respondent's custody and registered in the late James
Bvisai's stock card were given to the late James Bvisai for keeping them in
trust of the whole family as he was the eldest son. He gave the history of how their
late father Bvisai Rusike had acquired the cattle. He said one beast was
brought by Everisto Rusike their brother who gave it to the late father. Two
beasts came from their brother in law one Machaka who also later brought
additional 4 beasts. Regis Rusike said these beasts form the core of the 16
beasts later given to the late James Bvisai when he retired. He said the other
ten (10) beasts were paid as lobola for their aunt and also given to James
Bvisai for safekeeping. He confirmed that a beast was slaughtered at the late
James Bvisai's funeral and another at the memorial service.
Under cross examination Regis Rusike
admitted that when the late James Bvisai died in 2002 part of his estate was
distributed and confirmed being given a cultivator as his share and also
retrieving his plough. He was unable to explain in any satisfactory manner why he
and others at that material time did not take possession of the remaining 7
herd of cattle in 2002 in the same manner he had taken the cultivator and
plough.
All he could say
was that he wanted the respondent to benefit from the manure derived from the
cattle. As already said he did not confirm paying the cattle tax.
PHINEAS
RUSIKE
He is the eldest surviving brother and
he testified that when their late father died in 1978 he was given their late
father's cattle to keep in his capacity as the eldest son at the rural home. He
said when the late James Bvisai who was the eldest son retired from work in Harare and settled at the
rural home he surrendered the cattle to the James Bvisai who proceeded to
register them in his stock card. On that basis the said respondent cannot lay
claim to the cattle as they did not belong to her late husband. Under cross
examination he seemed unaware of the fact that part of the late James Bvisai's
property like the cultivator and plough were shared amongst the family soon
after his demise. He even disputed a fact seemingly common cause that the
Respondent has custody of the 7 herd of cattle and that she in fact herds the
cattle.
MAGRETH
HORE
She
is a sister to both appellants, Phineas Rusike and the James Bvisai She a gave
somewhat different account in relation to the 7 herd of cattle. She said 2
beasts were left in the custody of the late James Bvisai by their late aunt and
that she is entitled to these beasts herself as per custom although she had not
taken them soon after the death of the late James Bvisai. Her reason for not
taking the cattle is that she wanted Respondent to
use them for
ploughing and to get manure. She said of the remaining 5 herd of cattle from
the 7 herd of cattle belong to their late father who got them as part of lobola
paid to him. She said respondent's late husband James Bvisai never acquired any
cattle in his own right.
Under cross examination by the respondent
she was not able to dispute respondent's account of how the three beasts belonging
to the late Bvisai Rusike are accounted for.
The respondent said her father in law's beasts were only three and one
was sold to meet the medical bills for her ailing aunt, the other was injured
and therefore put down and the third one was slaughtered at James Bvisai's
funeral. Margreth Hore admitted giving
one beast to the late James Bvisai but denied she did so as a token of
appreciation. She admitted that she is
not paying any cattle tax for the 2 beasts she claims to be hers and conceded
respondent is looking after the cattle. Her explanation is that she is married
elsewhere.
CHARLES MUZUVA
He is a close relative of the Rusike
family. Charles Muzuva also seemed to have a different account of how the late
Bvisai Rusike acquired the cattle he says were later given to the late James
Bvisai. He said 4 beasts came from
Bvisai Rusike's son in law in Masvingo and one from Chiswa in Murehwa. He said the other came from one Dudzu. He
said after the death of Bvisai Rusike these cattle were kept by Phineas Rusike
and later by the late James Bvisai and were 14 in number. He said soon after the death of the late
James Bvisai the beasts were not inherited as they are supposed to be held in
trust by the eldest son of the family for the benefit of the whole family.
Under cross examination by the
respondent Charles Muzuva admitted that at the time respondent married the late
James Bvisai Charles Muzuva was working in Harare. When he was further probed about the
history of the cattle in issue he washed his hands by the biblical Pilate
saying he had no knowledge of the of the cattle and that this dispute was a
family affair.
THE RESPONDENT - MODIE MALIMAO
Her evidence is that she married her late
husband James Bvisai in 1995 and that her husband had a total of 14 cattle of
which only one beast, an ox belonged to him. She said 3 of the cattle belonged
to her late father in law Bvisai Rusike and 10 cattle to their aunt. She
explained what happened to the three cattle belonging to her late father in
law. She said one was sold to raise medical fees for her husband's sister
Sorotiya who was ill, one was injured and therefore put down and the third one
was slaughtered at her late husband's funeral. She denied being in possession
of her late father in law's cattle. She explained that the aunt's 10 beasts are
not part of the 7 herd of cattle now in dispute as these are available. The
respondent then explained the history of the 7 herd of cattle now in dispute.
She said the ox owned by her husband at the time she married him was exchanged
with a heifer from one Magwaza. This heifer produced 4 other beasts. She said
their aunt gave her late husband one heifer as a token of appreciation for
looking after the aunt's beasts and this heifer produced 2 other beasts, thus
giving a total of 7 herd of cattle. She said these are the beasts currently
registered in her late husband's stock card and form part of her late husband's
estate. The respondent explained that since her marriage in 1995 she has been
looking after the cattle even after the death of her husband in 2002. She said
she pays cattle tax for the 7 herd of cattle and that she is the one who always
pay compensation to fellow villagers when the cattle destroyed other villagers'
crops. She herds the cattle and is the one responsible for them (herding,
grazing and dipping them). She maintained that when she got married her husband
had only one ox and the other beasts belonged to her late father in law and
aunt.
The respondent maintained her story
under cross examination in relation to the number of cattle her late husband
had when they got married, how her late father in law's beasts are accounted
for and that the aunt's beasts were later on sold and are not part of the 7
herd of cattle in issue.
All in all this is the summary of
the evidence led before the court a quo
THE
LAW
This appeal is
sorely based on dispute of fact rather than the law. The law is clear on the
basis or grounds upon which the appellate court would interfere with the
exercise of judicial discretion on a dispute of fact. These grounds are set out
in the case of Barros
& another v Chimponda1999 (1) ZLR 58
(S) at 62F - 63A in which the learned CHIEF JUSTICE GUBBAY had this to say;-
" The attack upon which the determination of
the learned Judge that there are no special circumstances for preferring the
second purchaser above the first - one which clearly involve the exercise of
judicial discretion may only be interfered with on limited grounds. These
grounds are firmly entrenched. It is not enough that the appellant court
considers that if it had been in the position of the primary court it would have
taken a different course. It must appear that some error had been made in the
exercise of the discretion. If the primary court acts upon wrong principle, if
it allows extraneous or irrelevant matters to guide or affect it, if it
mistakes the facts, if it does not take into account some relevant
consideration, then its determination should be reviewed
and the
appellant court may exercise its own discretion in substitution, provided
always it has the materials for so doing. In short this court is not imbued
with the same broad discretion as was enjoyed by the trial court."
See also Hatendi v Hatendi 2001 (2) ZLR 530 (S)
especially the remarks by SANDURA JA at 533G-H.
I now proceed to apply the
principles set out above to the facts of this case. I should consider whether
the court a quo made findings of fact based on evidence adduced. This is
important in determining whether there is any misdirection on the part of the
court a quo and therefore the basis for interference by this court.
In the reasons for judgment the trial
magistrate gave an analysis of the evidence on page 8 of the record. The
Learned Magistrate made these findings.
(i)
that the respondent gave her evidence very well.
(ii)
the respondent was not shaken in cross examination
(iii)
respondent stuck to her story through and through
(iv)
that the Learned Magistrate assesses her to be a
credible witness
(v)
that the respondent did manage prove her case on a
preponderance of probabilities as she managed to chronicle the history of the
cattle in issue without any hussles.
The Learned Magistrate went
on to also consider the law which governed the administration of estates of
persons married in terms unregistered customary law prior to the amendment introduced
by Act No. 6/97 and the current position. The Learned Magistrate proceeded to
apply the law to the facts of the case and made a finding that respondent was
James Bvisai's surviving spouse in whose
custody her late husband left the 7 herd of cattle which she kept for 7 years
after which she proceeded to register the estate. The Learned Magistrate did
find as a fact that the respondent is the keeper of the beasts ever since she
was married to date and has she clearly explained which beasts belong to her
husband, her late father in law and her aunt and how the beasts belonging to
her father in law and aunt were extinguished. The Learned Magistrate did find
that the order sought by the appellants was not only misplaced but myopic as it
seeks to trapple upon the recognized rights of the respondent. It was on that
basis that the court a quo found no merit in the application made by the
appellants and that there was no basis to bar respondent from including the 7
herd of cattle in the estate of her late husband as she is the executor.
The only discernable bone
of contention by the appellants is that the court a quo should have believed
their side of the story rather than the respondent. Put differently the
appellant are saying they are credible witnesses who should be believed. While
I agree that the issue of credibility is important in the case, I find no basis
to fault the Learned Magistrate approach and findings. I am fortified in this
view by the remarks made by KORSAH JA in Kombayi
v Berkhout 1988 (1) ZLR 53 (S) at 59B-C;
" In the main
the case involved a credibility finding by the Learned trial Judge, and he gave
a well reasoned and extensive explanation as to his findings of the credibility
of witnesses.........Where the question on appeal from a decision of a Judge is
one of credibility, the interests of the parties cannot but affect their
testimonies even where the story told by either party may be true, or the
probabilities do not appear to favour one party more that the other, the
appellate court would loathe to reverse the conclusions arrived at by the trial
Judge, who had seen and heard the witnesses, unless, it is clearly demonstrated
that he had fallen into error."
The above comments apply
with equal force in this case. The Learned Magistrate assessed the credibility
of the witnesses and made findings in that regard.
I am satisfied that
there is no basis in this case to interfere with the determination made by the
Learned Magistrate. I find no error made in exercising his discretion in this
matter. There is therefore no valid criticism which can meaningfully be made
into the manner in which the Learned Magistrate assessed the evidence and
exercised his discretion. The Learned Magistrate did not act on wrong principle
neither can it be said the Learned Magistrate allowed extraneous or irrelevant
matters to guide or effect the findings made. There is therefore no
misdiscretion on the part of the Learned Magistrate. It is obviously not the
role of this court to substitute the Learned Magistrates decision for its own
in the absence of a finding that the Learned Magistrate made findings totally
unsupported by the facts. This is clearly not the position in this case.
In the circumstances
the appeal is devoid of merit and is therefore dismissed with costs.
GUVAVA J: agrees...............
Tsara and Associates, legal practitioners for the respondent.
