Civil Appeal
GOWORA J: On 10 July 2006,
the respondent herein, whom I shall refer to as the plaintiff issued
summons in the Magistrates Court Harare against the appellant, the
defendant claiming “sharing of property.”
Particulars of claim attached to
the summons made reference to a customary union which resulted in the
establishment of a universal partnership. It was accordingly prayed
that it would be just and equitable for the court to order that a
house shared by the parties during the partnership be sold and the
proceeds jointly shared between the parties.
The defendant pleaded to the
claim in a manner which both denied and accepted the existence of the
customary union, the existence of the universal partnership and the
acquisition of the immovable property over which the plaintiff was
claiming a right to a share.
I find that the defendant's
legal practitioners filed a plea which was not only vague and
embarrassing but which did not clearly set out the facts upon which
the defence was based.
The errors I have referred to
above notwithstanding, the matter went before a magistrate for trial
and on 19 April 2007 the magistrate rendered a judgment in terms of
which the plaintiff was awarded a fifty percent share in the
immovable property.
The defendant then noted an
appeal against the judgment.
The evidence adduced at the trial
in the court below established that the parties had an unregistered
customary union which resulted in the birth of one child. The parties
stayed together from 1982 to 1986 when the plaintiff left the
matrimonial home. During the period in question, despite the absence
of a formal relationship, the parties conducted themselves and
treated each other as husband and wife. Evidence was led to the
effect that a customary marriage ceremony took place where the
defendant paid part of the bride price (lobola). According to the
plaintiff the defendant had not finished paying all of it when they
separated. The defendant accepts that the parties had such a union.
There are a number of issues on
which the parties differ in so far as the evidence adduced at the
trial is concerned.
The case for the plaintiff is
that she had failed to return home after an excursion with the
defendant. As a result she and the defendant decided to get married.
The defendant's case is that he and the plaintiff had not returned
home. The next day the plaintiff was told by her relatives she was
not acceptable at home. She moved in with him. He was then forced to
live with her, and decided to pay damages for having made her
pregnant.
What is not in dispute is that
the parties lived together from 1982 to some time in 1986. During
that period an immovable property, known as 82 Caledon Avenue,
Hatfield, was purchased through a mortgage bond secured in the name
of the defendant. The defendant was responsible for settlement of the
mortgage payments, whilst the plaintiff took care of the other
household expenses. The deposit for the house was paid by the
defendant even though the plaintiff indicated in her evidence that
she had contributed towards half of the deposit paid by the
defendant.
From the evidence adduced before
him, it is my view that the magistrate correctly concluded that the
defendant had paid lobola for the plaintiff and the parties were
married in terms of custom. The union was however never solemnised.
Although the defendant did not
plead lack of jurisdiction in his plea, when closing submissions were
filed on his behalf at the close of the trial, it was argued on his
behalf, that if the plaintiff's claim was premised on a tacit
universal partnership then the trial court lacked the jurisdiction to
entertain the matter as the value of the property in dispute was in
excess of Z$5 million.
It was conceded by the
defendant's legal practitioner that no evidence had been adduced on
the value of the property but the court was urged to take judicial
notice of the fact that a half share in an immovable property in
Hatfield could not possibly at the time be valued at less that Z$5
million. It was accordingly argued that the claim should be dismissed
on that basis.
The trial court was addressed on
the question of the lack of jurisdiction of the court given the
monetary value of the items in dispute, but it does not appear as if
the magistrate addressed his mind to this.
It had not been pleaded but a
defendant can consent to a claim where the value of the claim exceeds
that set by statute.
Although there is no evidence on
the value of the property the defendant has urged this court to
assume that it is in excess of Z$5 million.
In the exercise of its appellate
jurisdiction the High Court being a superior court with inherent
jurisdiction is empowered to exercise review powers.
There are certain aspects to this
matter that point to procedural irregularities.
First and foremost the summons in
terms of which proceedings were instituted is the form used for
instituting divorce proceedings in the Magistrates' Court for the
dissolution of a marriage solemnised in terms of custom. The summons
to which the particulars of claim were attached appeared to be
divorced from the cause that the plaintiff had brought to court. The
summons spoke an action for sharing of property which is not a cause
of action recognisable under general law. The summons calls upon a
defendant to appear at court to answer the plaintiff's claim and to
file his defence before the date of hearing. This is in fact in terms
of Rule 8(8) of the Customary Law Court rules.
To this the plaintiff had
attached particulars of claim in which she sought a half share of the
proceeds of the Hatfield property after a judicial sale of the same.
There is no claim therein to a decree for divorce, despite the
summons having been issued under rules utilised for divorce in a
customary union.
On the other hand summons under
general law in terms of the rules of the Magistrates' Court allows
a defendant seven days in which to enter appearance after service of
summons. A defendant who enters an appearance to defend the claim is
obliged to file a plea in which the basis of the defence to the claim
is set out.
In terms of Order 19 Rule (1) the
party wishing to have the action brought forward to trial must
request the other party to attend a pre-trail conference at a
mutually convenient time and place. This is normally done before a
magistrate in chambers. At the pre-trial conference all issues
ancillary to the trial are dealt with including the issues for trial
and the duration of such trial.
In casu,
all these stages were skipped which leads one to conclude that
despite the cause of action having been premised on general law the
parties conducted their dispute as if it were premised on customary
law principles. There was therefore a mixture of procedures starting
from the institution of the summons themselves.
I have no hesitation in
concluding that the summons was defective.
I turn then to the issue of
jurisdiction or lack thereof.
In terms of the Magistrates Court
Act [Cap 7:10]
the jurisdiction of the court is provided for as follows:
“11. Jurisdiction
in civil cases
(1)
Every court shall have in all civil cases, whether determinable by
the general law of Zimbabwe or by customary law, the following
jurisdiction -
(a)
excepting any other jurisdiction assigned to any court by this Act or
any other enactment, the persons in respect of whom the court shall
have jurisdiction shall be -
(i)
any person who resides or carries on business or is employed within
the province;
(ii)
any partnership whose business premises are situated or, any member
whereof resides, within the province;
(iii)
any person whatever, in respect of any proceedings incidental to any
action or proceedings instituted in the court by such person himself;
(iv)
any person, whether or not he resides, carries on business or is
employed within the province, if the cause of action arose wholly
within the province;
(b)
with regard to the causes of action -
(i)…
(ii)…
(iii)…
(iv)
in actions in which it is claimed a decree of divorce, judicial
separation or nullity of a marriage solemnized in terms of the
Customary Marriages Act [Cap
5:07],
including actions relating to the division, apportionment or
distribution of the assets, whether movable or immovable, of spouses
or former spouses of such marriages and the payment of maintenance in
terms of the Matrimonial Causes Act [Cap
5:13].”
A Magistrate's Court would
therefore not have the jurisdiction to deal with this matter as a
divorce in the absence of solemnisation of the union under the Act.
The only circumstance under which
the Magistrate's Court would have jurisdiction is if the matter
were an ordinary civil dispute which was within the monetary
jurisdictional limit of the court.
From the description of the house
which is the subject matter of the dispute, it is pretty obvious that
its monetary value exceeded by far the jurisdiction of the
Magistrates Court. The Magistrates Court is a creature of statute and
can only function within the confines and parameters set by the
statute that creates it. It cannot grant to itself any powers not
afforded it by the statute and one of those powers is the limitation
on its monetary jurisdiction.
In Mandava
v Chasekwa
HH42-08 MAKARAU JP (as she then was) and HLATSHWAYO J stated as
follows in relation to the jurisdiction of the Magistrates Court:
“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 done and that choice
was general law that a valid cause of action had been pleaded... the
value of the estate that the trial court set to distribute far
exceeded its monetary jurisdiction...”
In my view those remarks are
pertinent and apposite in casu.
There was a choice of law
exercised in that the plaintiff based her claim on universal
partnership and/or unjust enrichment. This choice was however only
exercised in terms of the particulars of claim filed by the
plaintiff. The court had the capacity to determine the dispute as
formulated by the plaintiff even if in the particulars of claim the
cause of action appeared to be drifting between a universal
partnership and unjust enrichment.
Although the plaintiff appears to
have chosen to have the dispute settled as a claim for distribution
of assets under a tacit universal partnership the record reveals that
the matter was actually disposed of as if the court was considering a
divorce under customary law. Clearly in the absence of a marriage
under customary rites the court had no jurisdiction to determine the
plaintiff's claims unless premised under general law.
To add to the confusion, the
summons under which the dispute was presented to court removed it
from claims under general law.
In Feremba
v Matika HH33-07
MAKARAU JP (as she then was) raised awareness to the problem of
jurisdiction arsing from these unions with the following remarks:
“...The distribution of the
assets of parties in an unregistered customary union by the
Magistrate's Court presents three main legal issues that all trial
magistrates must be wary of.
Firstly, an unregistered
customary union is not a marriage in terms of the Matrimonial Causes
Act and thus, the provisions of section 7 of the Act have no direct
application in distributing the assets of such parties. Further, the
provisions of section 11 of the Magistrate's Court Act [Cap
7:10]
which grants Magistrates Courts jurisdiction in divorce actions of
persons married in terms of the Customary Marriages Act [Cap
5:07]
do not apply to unions that are not registered under the Act. The
court has jurisdiction to apply customary law and can apply such law
to the distribution of the assets of the parties who were in such
union. If however, the court for some legitimate reason, is not
applying customary law then two further issues arise.
Firstly, for it to have
jurisdiction, then the value of the assets to be distributed has to
be ascertained for the ordinary Magistrates Court jurisdiction will
apply. Secondly, for a claim based on common law, a recognised cause
of action must be pleaded.”
In this instance, the face of the
summons bore the legend 'sharing of property'. Even if it were to
be assumed in the plaintiff's favour that the claim had been
brought under general law, the monetary jurisdiction of the court in
this case has been challenged by the defendant as no evidence was
placed before the court as to the value of the immovable property
that the plaintiff sought a share in.
The fact that such property was
located in the low density suburbs cannot in my view lead to an
inevitable conclusion that the value thereof exceeded the monetary
jurisdiction of the Magistrate's Court. Generally properties in the
low density suburbs do tend to be of higher value than those in the
high density suburbs but it is however not given that in every
instance the value of such property has to be high or exceed the
jurisdiction of the Magistrate's Court.
In this case, and in fact in
every case where a Magistrate's Court has to adjudicate over a
matter involving an immovable property, it is important that the
value of such property be established at the outset to inform the
court whether or not the property is within its jurisdictional
limits.
In this case it was not done and
other than to remark that the property may well have been outside the
jurisdiction of the court I cannot make a definitive statement
because its value was never established.
In Mandava
v Chasekwa supra
the Appeal Court had to contend with all these problems emanating
from the trail court. At p 3 the court stated:
“It is still part of our law
that unregistered customary unions are not marriages for the purposes
of the Matrimonial Causes Act [Cap
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 the
parties to an unregistered customary union tend to fall into three
errors.
Firstly, they tend to proceed to
deal with unregistered unions as if they are registered. Secondly
they fail to avert to the choice of law provisions of our law and
finally they tend to forget their monetary jurisdictional limit when
distributing joint estates at general law.”
In this case the court fell into
the error of treating the claim as if it had been brought under
customary law when the particulars clearly identified the claim as
one falling under general law. The court then applied the factors set
out in the Matrimonial Causes Act in its disposal in that it took
into account the contributions that the plaintiff had made as a
housewife.
Given the totality of the
irregularities attaching to these proceedings it is my view that the
proceedings are a complete nullity. The extent of the irregularities
is such that this court cannot make an order in favour of either of
the parties. The justice of the case demands that the proceedings be
set aside in their entirety. I therefore make an order as follows.
The proceedings in the court a
quo under case number
9146/06 be and are hereby set aside with no order as to costs.
PATEL J: agrees
Sawyer & Mkushi, legal practitioners for the appellant
Legal Aid Advice Scheme, legal practitioners for the
respondent
