Court name
Bulawayo High Court
Case number
HB 72 of 2006

Nyathi v Dube (HB 72 of 2006) [2006] ZWBHC 72 (12 July 2006);

Law report citations
Media neutral citation
[2006] ZWBHC 72

                                                                                    Judgment No. HB 72/06

                                                                                    Case No. HCA 23/04

 

NEPHAT NYATHI

 

Versus

 

ONAM DUBE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA AND NDOU JJ

BULAWAYO 14 FEBRUARY 2005 AND 13 JULY 2006

 

Appellant in person

Respondent in person

 

Civil Appeal

 

            NDOU J:       This is an appeal against the decision of a Gwanda Provincial Magistrate.  The background facts are the following.  The parties were joined in customary matrimony in 1997.  Their union is blessed with two children.  The respondent is the custodian parent.  They separated in September 2003.  On 12 November 2003 the respondent issued summons at the Magistrates’ Court claiming property itemised as follows: “1 kitchen unit, seven zincs, one double bed, one excile [sic] and one bicycle.”  The appellant defended the claim.  The basis of his defence was that of the claimed property he inherited the following from his late mother, “1 kitchen unit, 7 zinc sheets, 1 double bed and one bicycle.”  The evidence of the witnesses who sold the parties this property confirmed the respondent’s version that this property was purchased during the subsistence of the marriage of the parties.  These two witnesses, namely Flora Sibanda and Sithembile Ncube were found to be credible by the trial court.  It is trite that the assessment of the credibility of witnesses is the province of the trial court.  This appellate court will not interfere unless

                                                                                                                        HB 72/06

there is something grossly irregular in the proceedings to warrant such interference – S v Zulu HB-52-03.  In casu, there is no case made for such interference.  What can be discerned from appellant’s cross examination of witnesses and his testimony is that he inherited some goats from his late mother.  Some years later he sold some of the goats and used the proceeds to acquire some, if not most of the matrimonial property.  On this basis he protested the distribution of the said property as matrimonial assets.  On the basis of the credible evidence led during the trial, the trial magistrate rightly rejected this assertion.  The trial magistrate believed the respondent’s testimony that the goats that the appellant sold to acquire the property were in fact acquired by the parties during the subsistence of the marriage.  She testified further that the only goat that the appellant inherited from his mother died long ago.  The only issue left is whether the trial court shared the matrimonial assets between the parties fairly and equitably.  Although the trial magistrate did not specifically say so, it is clear that he used the formula set out in section 7 of the Matrimonial Causes Act [Chapter 5:13].  It is trite that in matters of this kind it is seldom possible for the court to ascertain with total accuracy the contributions of the parties to the joint estate – Dlamini v Dlamini HB-27-00; Takafuma v Takafuma 1994(2) ZLR 103 (S); Ncube v Ncube 1993(1) ZLR 39 (S); Chikomba v Nkomo SC 62-91 and Matsveto v Matsveto HB-51-04.  What can be gleaned from the trial magistrate’s judgment is that he lumped all the matrimonial assets together and thereafter distributed them as follows:

 

                                                                                                                        HB 72/06

“Applicant(Respondent)                                      Respondent (Appellant)

1 kitchen unit                                                           1 wardrobe

7 zinc sheets                                                             7 zinc sheets

1 double bed                                                            1 double bed

1 axle                                                                         1 bicycle

1 bicycle                                                                   1 door frame

                                                                                    1 plain roll of wire”

            The respondent is living with the parties’ two children.  The appellant remained at the matrimonial rural home and the respondent, notwithstanding her contribution thereto got nothing therefrom.  Looking at all the above factors cumulatively, the trial court exercised its discretion judiciously in terms of section 7,supra.

            Accordingly, the appeal must fail and it is dismissed with costs.

 

 

                                    Cheda J ………………………….. I agree