CIVIL APPEAL
MAKARAU JP: On 23 May
2005, the respondent issued summons out of Marondera Magistrates'
court. Her claim against the defendant, as it appears on the face of
the summons, is recorded as “sharing property”. An affidavit was
attached to the summons, curiously titled in my view as “Applicant's
supporting affidavit (Property Sharing)”.
In the affidavit, the respondent alleged that she was in an
unregistered customary union with the appellant and that during the
subsistence of the union, the parties had acquired certain household
goods and effects. She gave the estimate value of each item that she
alleged the parties acquired. She further alleged that due to the
violent conduct that the appellant exhibited towards her, the union
between them had broken down irretrievably. She ended the affidavit
by praying that the court confirms the distribution of the assets as
suggested by her in the affidavit.
It is not clear on the record how the matter was set down for trial.
I shall return to this point in detail later. The record however
indicates that on the day of the trial, the appellant was in
attendance and verbally indicated that he was opposed to the
proposals made by the respondent. Prior to the set down date, he had
not filed any pleadings or other papers in the matter.
The matter proceeded to trial with the parties giving evidence. For
the purposes of this appeal, it is in my view not necessary that I go
into the details of the evidence that each party led. After hearing
the parties, the trial court made an award that dissatisfied the
appellant, prompting him to note an appeal to this court. In his
notice of appeal, the appellant challenged the distribution that was
made in the lower court and prayed that it be set aside.
The parties were not legally represented at any stage of the legal
battle between them. We thus could not engage them at all regarding
the legal issues that arise in this appeal.
The legal points made in this judgment are therefore our opinions
without the aid of argument by counsel.
The two issues that arise are in my view so important that a copy of
this judgment will be dispatched to the Chief Magistrate for his
attention and for the benefit of other trial magistrates who may be
falling into the same pitfalls that the trial magistrate in this
matter fell.
I shall make the necessary order for this to be effected by the
Registrar.
Firstly, all magistrates' courts in this country are formal courts
whose proceedings are governed by a set of rules and established
procedures. It is trite that the pre-setting of rules of procedure is
to date the widely acceptable manner of avoiding arbitrariness and
ensuring fairness in the airing of disputes by litigants. Rules of
court are framed for a purpose and any procedure done outside the
rules is susceptible of being set aside as being unprocedural.
In the lower court, the respondent commenced her suit by issuing
summons against the appellant. She then filed an affidavit to support
her claim.
This was a most unusual mixture of procedures and one that the rules
of the lower court do not provide for.
In accordance with the rules, having issued summons in the matter,
the respondent had to file her particulars of claim to be answered by
the respondent by the filing of a plea or other answer.
Affidavits on the other hand, such as the one filed by the respondent
together with her summons, are a part of the application procedure.
The two procedures, viz, one commenced by the issuance of summons and
the other by the filing of an application, while overlapping and
sometimes exchangeable in terms of utility, are quite distinct one
from the other. They cannot be employed at the same time to resolve
the same dispute.
I have indicated above that the parties were not legally represented
before the lower court. I thus do not hold it against her that she
filed incompetent papers before the lower court. In my view, the
fault lies squarely with the Clerk of the lower court who accepted
summons to which an affidavit was attached.
Even assuming that the
incompetent procedure detailed above escaped the attention of the
Clerk, the trial magistrate should not have proceeded to trial on a
matter that had not reached litis
contestation.
After the issuance of summons, no further pleading were filed in the
matter. No pre-trial conference was held.
The matter was thus not at issue and should therefore not have been
referred to trial.
In my view, the informality allowed in this matter by the trial
court, of hearing the parties in the absence of pleadings filed of
record and before a pre-trial conference was held in the matter is
unacceptable and cannot be allowed to stand. It destroys the
integrity of magistrates' courts as courts of law. It reduces
proceedings before the court to the same level as that before the
traditional leaders and at village level.
Even if we assume that the procedure before the court was application
procedure, the appellant as respondent in the lower court had to file
his notice of opposition and opposing affidavit before the matter
could be referred to a magistrate for hearing.
Application procedure is ordinarily determined on the basis of the
papers filed and in the absence of papers from the respondent, a
hearing of oral evidence was improper.
The magistrate should have returned the matter to the Clerk as not
being ready for a hearing in the absence of such observance to the
rules as I have highlighted above. His lapse in this regard in my
view cannot be condoned and is unacceptable.
It is hereby brought to the attention of the Chief Magistrate for
corrective action to be immediately taken lest the procedures in the
magistrates' court and the integrity of such court fall into
disrepute.
The second issue that arises in this appeal is one that escaped a
number of trial magistrates from the nature of the appeals that are
reaching this court.
The issue is on of a socio-legal nature and requires intervention
from parliament to correct the anomaly that exists between registered
and unregistered customary unions.
It is still part of our law that unregistered customary unions are
not marriages for the purposes of the Matrimonial Causes Act [Chapter
5.13]. Consequently, parties to such unions cannot be divorced by the
courts and their joint estate cannot be distributed in terms of the
divorce of this country.
Trial magistrates who deal with the estates of parties to an
unregistered customary union tend to fall into three errors.
(i) Firstly, they tend to proceed
to deal with unregistered unions as if they are registered.
(ii) Secondly, they fail to avert
to the choice of law provisions of our law; and
(iii) finally they tend to forget
their monetary jurisdictional limit when distributing joist estates
at general law.
The trial magistrate in casu
fell into all three
traps.
In his award, he was attempting
to effect a just and equitable distribution of the joint estate as if
he was dealing with a marriage recognized as such at law. He applied
the law of equity as provided for in section 7 of the Matrimonial
Causes Act and attempted to sort the estate into three lots marked
'his', 'hers' and 'theirs' following the guidelines given
to divorce courts by the Supreme court in Takafuma
v Takafuma 1994 (2)
ZLR 103 (SC).
The above is not to say that parties in an unregistered customary
union cannot approach the court for relief.
They can.
However when they do so, it is a requirement of our law that they
chose which law they want to apply to the resolution of their dispute
as between customary and general law and if they chose general law,
they must plead a cause of action recognizable at law as their
“marriage” is not recognized as such.
In casu,
no choice of law inquiry was gone into and it is clear that he was
not applying customary law. However, since no cause of action at
general law had been pleaded, it is difficult to establish how he
came up with the order that he made and which principles of law he
applied.
Finally, the magistrate's court is a creature of statute with set
jurisdictional limits in civil matters.
Assuming that a choice of law had been properly made and that choice
was general law, that a valid cause of action had been pleaded and
the matter had properly proceeded to trial in terms of the rules, the
value of the estate that the trial court set to distribute far
exceeded its monetary jurisdiction and the trial magistrate did not
even advert to this issue.
The issues that I have highlighted above are not new to this appeal
court.
I have had occasion to discuss
the same issues in B
Feremba v P Matika
HH33/2007. I will take the risk of repeating myself again in this
judgment and exhort all trial magistrates approached to distribute
the joint estates of persons in an unregistered customary union to
ensure that the parties before have made the appropriate choice of
law between customary and general law. Once a choice of law has been
appropriately made, two further issues arise but only if general law
is chosen. These are the cause of action and the monetary
jurisdiction of the trial magistrate.
In view of the fact that the trial magistrate failed to observe any
of the above, his decision cannot stand.
In the result, I make the following order:
1. The appeal is allowed.
2. The matter is hereby remitted
to the magistrate's court for a trial de novo.
3. The parties are to file
pleadings in accordance with the provisions of the rules and a
pre-trial conference has to be held in the matter before the trial.
4. Each party shall bear its own
costs.
5. The Registrar of this court is
directed to bring this judgment to the attention of the Chief
Magistrate.
HLATSHWAYO J agrees…………………………………..
