The
applicant was the defendant in a divorce action instituted by the
first respondent in the High Court. The action culminated in a
judgment in which the High Court granted an order of divorce, coupled
with the distribution of the assets of the spouses, maintenance, and
an order governing custody of and access to two ...
The
applicant was the defendant in a divorce action instituted by the
first respondent in the High Court. The action culminated in a
judgment in which the High Court granted an order of divorce, coupled
with the distribution of the assets of the spouses, maintenance, and
an order governing custody of and access to two minor children.
The
applicant was aggrieved by the judgment of the High Court on the
distribution of property and appealed to the Supreme Court (“the
court a
quo”).
The first respondent cross-appealed. The applicant's main argument,
in the main appeal, was that the High Court failed to properly
exercise its discretion in terms of section 7(4) of the Matrimonial
Causes Act [Chapter
5:13]
(“the Matrimonial Causes Act”), which provides for the
circumstances which a court may have regard to when considering the
issues of the
division, apportionment or distribution of the assets of the spouses
and the payment of maintenance. He argued that the High Court failed
to act in accordance with the principle laid down in Takafuma
v Takafuma
1994
(2) ZLR 103 (S). In that decision the Supreme Court said:
“…,
the court does not simply lump all the property together and then
hand it out in as fair a way as possible. It must begin, I would
suggest, by sorting out the property into three lots, which I will
term 'his', 'hers' and 'theirs'. Then it will concentrate
on the third lot marked 'theirs'. It will apportion this lot
using the criteria set out in section 7(3) of the Act. Then, it will
allocate to the husband the items marked 'his' plus the
appropriate share of the items marked 'theirs', and the same to
the wife.”
The
court a
quo
found that the High Court had acted in accordance with the provisions
of section 7(4) of the Matrimonial Causes Act, and, as such, had not
erred. It dismissed both the appeal and the cross-appeal on the basis
that they had no merit. On the question of the applicability or
otherwise of the principle enunciated in Takafuma
v Takafuma
1994
(2) ZLR 103 (S),
the court a
quo…,
in Simon
Denhere v Mutsa Denhere
SC51-17, said:
“…,
the court, in Takafuma's
case (supra),
was setting out an approach on the correct way of achieving an
equitable distribution. The factors that a court had to take into
account in the distribution are set out in the Act. The principle
itself is found in the Act. The appellant fails to appreciate that
what Takafuma
prescribes is a formula and it is not one that is applicable in every
situation. It is erroneous, in my view, to suggest that the court a
quo
should have strictly followed the formula as set out by mcnally
ja..
In this case, the court found that all the property, with the
exception of the stand in Chitungwiza, was acquired during the union.
In such a case one cannot speak of piles. They do not exist as all
the property is matrimonial property and falls for distribution.
The
court a
quo
did not create three lots of the matrimonial estate. That is not to
say that its approach was incorrect. Having found that theirs was a
marriage of equals, there were no baskets in which to place the
properties. It became unnecessary to do so.”
The
applicant was aggrieved by the decision of the court a
quo
and filed the application for an order for direct access to the
Constitutional
Court.
He seeks to approach the Constitutional
Court
in terms of section 85(1) of the Constitution of Zimbabwe Amendment
(No.20) Act 2013 (“the Constitution”), alleging that the court a
quo
breached his right to equal protection of the law enshrined in
section 56(1) of the Constitution.
The
applicant argued that the High Court erred by not following the law,
as pronounced in Takafuma
v Takafuma
1994
(2) ZLR 103 (S);
a judgment binding on it according to the doctrine of stare
decisis.
He argued that the failure to apply the formula enunciated in
Takafuma
v Takafuma
1994
(2) ZLR 103 (S) imposed on the court a
quo
the obligation to set aside the judgment of the High Court on appeal.
The basis of the applicant's argument was that the court a
quo,
in dismissing the appeal, failed to protect his right to equal
protection of the law, as it was obliged to correct the error and set
aside the judgment of the High Court. The contention was that it was
in the interests of justice to grant the order of direct access for
the Constitutional
Court
to vindicate the rule of stare
decisis,
which is an important aspect of the rule of law....,.
The
question which was before the court a
quo
for determination was whether or not the decision of the Supreme
Court in Takafuma
v Takafuma
1994
(2) ZLR 103 (S), on the formula that a court faced with the task of
the division, apportionment or distribution of the assets of the
spouses upon dissolution of marriage by divorce can use to secure an
equitable distribution, applied in every case regardless of the
circumstances.
The
court a
quo
considered the wide discretion given to a court faced with the task
of the division, apportionment or distribution of the assets of the
spouses upon dissolution of marriage by divorce under section 7(4) of
the Matrimonial Causes Act. It took into account the fact that the
object of the exercise of jurisdiction by the court is to secure
equitable distribution of the property. The court a
quo
concluded that the decision in Takafuma
v Takafuma
1994
(2) ZLR 103 (S),
on the formula enunciated therein, applied to similar cases and not
to every case.
The
effect of the decision of the court a
quo
on the issue before it for determination was that the applicability
of the decision in Takafuma
v Takafuma
1994
(2) ZLR 103 (S) as a binding precedent in a case depended on the
facts of that particular case. It reasoned that the High Court, being
faced with a case the facts of which were entirely different from
those that formed the basis of the decision on the point of law in
Takafuma
v Takafuma
1994
(2) ZLR 103 (S) was faced with a new controversy calling for a
different decision....,.
The
applicant's contention was that the court a
quo's
decision “trashed” the rule of stare
decisis,
which is of fundamental importance to the rule of law. The argument
was that the court a
quo
ought to have reached the conclusion that the High Court was bound by
the decision of the Supreme Court in Takafuma
v Takafuma
1994
(2) ZLR 103 (S) on the formula for the distribution of the assets of
spouses upon dissolution of marriage by divorce enunciated in that
case. The contention was that failure by the court a
quo
to hold the High Court to the obligation to follow the decision in
Takafuma
v Takafuma
1994
(2) ZLR 103 (S) on the point of law pronounced upon in that case
violated the applicant's fundamental right to equal protection of
the law enshrined in section 56(1) of the Constitution.
To
show the fallacy in the applicant's contention, it is necessary to
consider the content and scope of the doctrine of stare
decisis.
The
words “stare
decisis”
are Latin words which mean that things that have been decided should
be left to stay undisturbed. The meaning of the doctrine of stare
decisis
is that when a point of law has been once solemnly and necessarily
settled by a decision of a competent court it will no longer be
considered open to examination or to a new ruling by the same
tribunal or those which are bound to follow its adjudication. The
doctrine of stare
decisis
is therefore a rule of precedent or authority, addressed to lower
courts and members of the public, who are decision-makers, to the
effect that decisions of the higher courts on particular points of
law presented to
and
passed upon by those courts are law. Lower
courts
are bound to obey them in similar cases in future until they are
over-ruled; even though a rigorous adherence to them might, at times,
work individual hardship.
COOLEY
“Constitutional
Limitations”
(2ed)..., sets out the rationale for the rule of stare
decisis.
The learned author says:
“All
judgments, however, are supposed to apply the existing law to the
facts of the case; and the reasons which are sufficient to influence
the court to a particular conclusion in one case ought to be
sufficient to bring it or any other court to the same conclusion in
all other like cases where no modification of the law has intervened.
There would thus be uniform rules for the administration of justice
and the same measure that is meted out to one would be received by
all others. And even if the same or any other court, in a subsequent
case, should be in doubt concerning the correctness of the decision
which has been made, there are consequences of a very grave character
to be contemplated and weighed before the experiment of disregarding
it should be ventured upon. That state of things, when judicial
decisions conflict, so that a citizen is always at a loss in regard
to his or her rights and his or her duties, is a very serious evil;
and the alternative of accepting adjudged cases as precedents in
future controversies resting upon analogous facts, and brought within
the same reasons, is obviously preferable.”
The
often quoted passage on the reasons which underlie the rule of stare
decisis
is by CHANCELLOR KENT in Kent's
Commentaries 475,
found in COOLEY's Constitutional
Limitations 2ed….,.
CHANCELLOR KENT said:
“A
solemn decision upon a point of law arising in any given case becomes
an authority in a like case, because it is the highest evidence which
we can have of the law applicable to the subject, and the judges are
bound to follow that decision so long as it stands un-reversed,
unless it can be shown that the law was misunderstood or misapplied
in the particular case. If a decision has been made upon solemn
argument and mature deliberation, the presumption is in favour of its
correctness, and the community have a right to regard it as a just
declaration or exposition of the law and to regulate their actions
and contracts by it. It would therefore be extremely inconvenient to
the public if precedents were not duly regarded and implicitly
followed. It is by the notoriety and stability of such rules that
professional men can give safe advice to those who consult them, and
people in general can venture to buy and trust, and to deal with each
other. If judicial decisions were to be lightly disregarded, we
should disturb and unsettle the great landmarks of property. When a
rule has once been deliberately adopted and declared, it ought not to
be disturbed unless a court of appeal or review, and never by the
same court, except for very urgent reasons, and upon a clear
manifestation of error; and if the practice were otherwise, it would
be leaving us in a perplexing uncertainty as to the law.”
The
importance of the rule of precedent to the rule of law cannot be
gainsaid. It is indeed a rule of law, the purpose of which is to
ensure uniformity and legal certainty in the decisions of courts,
particularly lower courts, and points of law arising for
determination in similar cases. Every decision on a point of law is
informed by a set of facts that are distilled into the ratio
decidendi
of the case which controls decisions in future similar cases. The
doctrine of stare
decisis
therefore forms the basis of the policy of the courts and the
principles upon which rests the authority of judicial decisions as
precedents in subsequent litigation.
In
Payne
v Tennessee
501 US 808 (1991)…, the rule of stare
decisis
was lauded for promoting “the even-handed, predictable and
consistent development of legal principles” and contributing to
“the actual and perceived integrity of the judicial process”. See
DANIEL A FARBER, The
Rule of Law and the Law of Precedents
90 MINN.L.Rev. 1173, 1179 (2006).
The
rule of stare
decisis
is subject to certain necessary and proper limitations. On the one
hand, the limitations secure and enhance its practical utility,
whilst, on the other, they prevent its abuse. The first obvious
limitation is that the rule commands obedience to a decision on a
point of law in subsequent similar cases. If a decision of a court
is, in essence, merely the determination of a fact, it is not
entitled to the same sanction against subsequent decisions of lower
courts which, under the rule of stare
decisis,
is accorded to a decision on a point of law.
The
rule of stare
decisis
does not require decision-makers to comply with a decision which is a
precedent on a particular point of law in every case regardless of
the circumstances. The language of the decision is to be construed
not as a statement of abstract propositions without limitation. It
must be construed in connection with the particular facts of the case
and the specific matters that were in view when the language was
used. In other words, every rule of precedent has a set of juristic
facts which it governs. The rule of stare
decisis
does not require adherence to a decision on a point of law in a case
in which the state of facts is entirely different from the juristic
facts governed by the precedent.
The
court a
quo
took into account the requirements of the rule of stare
decisis.
It concerned itself with the possible results of compliance with the
decision in Takafuma
v Takafuma
1994
(2) ZLR 103 (S)
when the facts of the case were essentially different from the
juristic facts at the heart of the precedent. The decision of the
court a
quo
that the decision in Takafuma
v Takafuma
1994
(2) ZLR 103 (S)
was not applicable in the case on appeal was consistent with the rule
of stare
decisis,
which demands that lower courts ought to adhere to previous decisions
of the higher courts on points of law in similar cases.
The
conclusion reached by the court a
quo,
and the reasons for it, had nothing to do with disobeying the rule of
precedent. The issue for determination was whether the case on appeal
was a similar case for which the precedent in Takafuma
v Takafuma
1994
(2) ZLR 103 (S)
was intended.