HIGH COURT OF ZIMBABWE
HARARE, 9 and 30 June 2011
Mr Debwe, for the appellant
Mr Maanda, for the respondent
GUVAVA J: This is an appeal against a judgment by the Mutare Magistrates’ Court delivered on 16 June 2009. The appellant appeals only against the award made in relation to the immoveable property. In the grounds of appeal the appellant attacked the magistrates' findings that she was only entitled to a 5% share in the property on the basis that he did not properly take into account her direct and indirect contributions and the length of her "marriage".
The facts giving rise to this appeal may be summarized as follows: The parties entered into an unregistered customary law union in 1996. Two children were born out of this union. An immoveable property as well as various movables were purchased by the parties during the period that they lived together. In 2007 the parties commenced to live apart because of differences which had arisen in their relationship. A full trial was conducted before the trial court and an order was made in the following terms:
“1 By consent a decree of divorce is hereby granted.
2.By consent the plaintiff Plaxedes Mukondo is awarded custody of the minor children Nyaradzo Zengeni and Rutendo Zengeni subject to the defendant's reasonable rights of access over every school holiday.
3. Of the moveable property of the marriage, the plaintiff is awarded all the property in her particulars of claim except the upright refrigerator, the double bed, wooden chairs and the sofas which are awarded to the defendant being property he acquired by the defendant prior to his marriage to the plaintiff.
4. Of the immoveable property known as 1392 Chikanga 1, Mutare the plaintiff is awarded 5% of the total value of the immoveable property and the defendant is awarded the remaining 95%. The value of the house is to be assesses by an evaluator mutually agreed upon by both parties and each party is to contribute 50% towards the cost of evaluation. Either party can buy the other out in an amount equivalent to the percentage awarded by the court of the cost of the immoveable property.
5. Each party to bear its own costs.”
In this case both legal practitioners, properly in my view, conceded that that the appeal should be allowed and the judgment of the court a quo set aside for the reasons set out below. It is for that reason that I will not dwell on the merits of the appeal as had been raised in the appellant's grounds of appeal.
This appeal serves to highlight once again the errors which are made by trial magistrates when dealing with cases involving an unregistered customary law union. The first error related to the recognition of the customary union as a valid marriage. In terms of s 3 of the Customary Marriages Act [Cap 5:07] no marriage contracted in accordance to customary law shall be regarded as valid. The relevant provision is as follows:
"3 Marriages not to be valid unless solemnized
- Subject to this section, no marriage contracted according to customary law, including the case where a man takes to wife the widow or widows of a deceased relative, shall be regarded as a valid marriage unless-
(a) such marriage is solemnized in terms of this Act; or
(b) such marriage was registered under the Native Marriages Act [Cap 79 of 1939] before 1st January 1951; or
(c) such marriage was contracted before 1stFebruary 1918; or
(d) being a marriage contracted outside Zimbabwe, such marriage is recognized as a valid marriage in the country in which it was contracted.
(2) A marriage contracted according to customary law on or after 1stFebruary 1918 and before the 1stJanuary 1951, which was not registered under the Native Marriages Act [Cap 79 of 1939] shall subject to subsection seven, be regarded as a valid marriage."
There is no evidence on the record that the parties' marriage fell within the ambit of this provision. It should therefore not have been considered as a valid marriage. The parties in this matter led evidence on the breakdown of the marriage as if it was a valid marriage and prayed for a decree of divorce which was granted by the court a quo. This in my view was a clear misdirection by the trial court.
The second error related to the fact that although the parties stated that general law principles should apply to their case no recognized cause of action was pleaded in their papers. I can do no better than refer to the case of Feremba vMatika 2007 (1) ZLR 337 where MAKARAU JP (as she then was) stated as follows when faced with a similar matter:
In this case the particulars of claim confuse a marriage and a customary union and use the terms interchangeably throughout the pleadings. The parties stated in their pleadings that the application of customary law to their case would cause an injustice and asked the court to apply the general law. However they then failed to set out the bases of the claim under general law. The court a quo, in its judgment, having realized the deficiency in the claim before it sought to introduce a cause of action on behalf of the plaintiff. This was misdirection by the trial court and I again urge both legal practitioners and trial magistrates to ensure that where they are dealing with an unregistered customary union and the parties wish general law principles to apply to their case, they are proper pleadings upon which an award can be made.
The third error related to the issue of jurisdiction. Where the court determines that it is just to deal with the distribution of assets in a customary union in terms of the general law then the ordinary monetary jurisdiction for that court applies. No evidence was led in this matter to show the monetary value of the property which had accrued to the parties during the course of their union. In my view however the fact that the property includes an immovable property would probably place it beyond the magistrate's monetary jurisdiction. In terms of the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules 2009 published in SI 21of 2009 on 6 March 2009 the monetary jurisdiction for civil claims in the magistrate's court was set at US$2 000-00. I do not believe that that amount would have been sufficient to cover the value of the immoveable property in question as well as the long list of movables which were set out in the appellant's particulars of claim.
Accordingly for the above reasons I make the following order:
- The appeal is allowed.
- The order of the court a quo is hereby set aside.
- There shall be no order as to cost.
MAWADZE J: I agrees …………………………….
Bere Brothers, appellant's legal practitioners
Maunga Maanda & Associates, Respondent's Legal Practitioners