Ambiguity (INTERPRETATION) https://old.zimlii.org/taxonomy/term/10713/all en Ngaru v Kusano (HH 265-21, HC 6160/20 Ref Case No. HC 2760/20) [2021] ZWHHC 265 (21 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 265-21</p> <p>HC 6160/20</p> <p>Ref Case No. HC 2760/20</p> <p>ESTHER NGARU</p> <p>versus</p> <p>LIVINGSTONE KUSANO</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 12&amp; 28 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application- Special Plea</strong></p> <p> </p> <p><em>E.T Muhlekiwa</em>, for the plaintiff</p> <p><em>R. Gasa</em>, for the defendant</p> <p> </p> <p>            MUZOFA J: The plaintiff sued out summons for the division of immovable property acquired by the parties during the subsistence of their tacit universal partnership. Alternatively, the division of the immovable property acquired during the subsistence of the parties’ unregistered customary law union based on unjust enrichment. In opposition to the claim the defendant filed a special plea, that the claim is prescribed.</p> <p>The plaintiff and the defendant were living together as husband and wife in terms of an unregistered customary law union from December 1982 when lobola was paid. Three children were born of the union.  In 2010 the defendant gave the plaintiff “gupuro” a token of rejection thereby terminating the union. There is no dispute that this is when the plaintiff’s cause of action arose.</p> <p>            During the subsistence of the union the parties acquired both movable and immovable property. In order to obtain her share of the property, the plaintiff approached the community court in Bulawayo for division of property. She was awarded by consent an immovable property known as No 6 Birkley Street North End “the property”. The defendant was awarded No 32 Wigton Road, Avondale in Harare. Both properties were registered in the defendant’s name. When the defendant delayed in causing the transfer of the property, the plaintiff approached this court to compel transfer. The matter was heard and the court dismissed the application and set aside the community court order<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. The court found that the community court had no jurisdiction to dissolve a customary law union neither could it share the “matrimonial” property because there was no marriage recognized at law between the parties. This was on 15 October 2020, some 7 years after the order of the community court. The plaintiff was undeterred, faced with this new hurdle, she did not throw in the towel. The plaintiff issued out summons as already set out.</p> <p>            In opposing the claim , the defendant filed a plea in bar that the claim is prescribed in terms of s 14 and s 15(d) of the Prescription Act [<em>Chapter 8:11</em>] (hereinafter referred to as the Act). The submission is that, the claim is founded in general law. Tacit universal partnership and unjust enrichment are general law concepts. As such prescription is applicable. The declaration is clear that the unregistered customary law union between the parties was terminated in 2010. The court process in the community court did not interrupt the running of prescription since the judgment was subsequently set aside. The summons in the main matter was issued in October 2020 almost 10 years after the cause of action arose.</p> <p>            In response, the plaintiff insisted on the claim. It was argued that the cause of action is based on the unregistered customary law union, pleading tacit universal partnership or unjust enrichment is for purposes of division of property only. In reality the claim is founded on customary law and in terms of s 3(2) of the Act prescription does not apply and referred to case authority for that proposition <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> where the court confirmed the position of the law that prescription does not apply where the rights and obligations of the parties are determined in terms of customary law.</p> <p>The issue for determination is whether prescription applies in the circumstances of this case. This is a matter of interpretation of statutes. The golden rule of interpretation is that where the language of the statute is clear and unambiguous, the words used ought to be given their ordinary grammatical meaning. However where the language used is ambiguous and lacks clarity or may result in an absurdity, the court will interpret it and give it meaning. In the event of an absurdity the court is required to give a meaning that does not result in an absurdity because it is presumed that the legislature in enacting any statute does not intend an absurdity<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p>In <em>Coopers and Lybrand and Others v Bryant</em><a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  the court noted,</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument”</p> <p> </p> <p>I find no ambiguity in the language used in s3 (2) of the Act. The intention of the legislature can easily be ascertained from the ordinary and grammatical meaning of the language used.</p> <p> Section 3(2) of the Act reads:</p> <p>"In so far as any right or obligation of any person in relation to any other person is governed by customary law this Act shall   not apply."</p> <p> </p> <p>            The section deals with the applicable law in the determination of the parties’ rights and obligations. It is the applicable law therefore that determines whether the provisions of the Act are applicable or not. The applicable law is determined by the nature of the pleadings through the cause of action.</p> <p>I was urged to consider the genesis of the right and conclude that the cause of action is based on customary law therefore the provisions of the Act do not apply. There is a difficulty in the submission. The plaintiff’s cause of action is based on tacit universal partnership and unjust enrichment. The plaintiff cannot rely on the customary law union since the cause of action is not based on the customary law union. Section 3 (2) of the Act is very clear and allows of no other interpretation. In other words where customary law is applied in the resolution of a dispute, the provisions of the Act will not apply. The opposite is equally true, where general law is applicable in the determination of the parties’ rights the provisions of the Act will apply. This interpretation resonates with reason since the concept of prescription is unknown under customary law.</p> <p>The plaintiff and the defendant were married in terms of an unregistered law union and therefore customary law would apply in the division of the property they acquired together. However in light of s3 of the Customary Law and Local Courts Act (Chapter 7:05), a claim on a proper cause of action under general law can be made. Customary law applies in civil cases where, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. It does not apply if the justice of the case otherwise requires. Where the application of customary law would bring injustice, the general law will apply. Indeed our courts have applied general law in many cases where the plaintiff has properly set out her cause<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. Thus even if parties are married in terms of an unregistered customary law union, their rights and obligations can be determined applying general law provided the cause of action is properly pleaded.  </p> <p>The plaintiff’s cause of action as set out in the summons is</p> <ol> <li>Sharing of immovable property that was acquired by the parties during the subsistence of their universal partnership alternatively</li> <li>The plaintiff claims against the defendant sharing of immovable property acquired during the subsistence of an unregistered customary law union between the parties based on the principle of unjust enrichment.</li> </ol> <p>The pleaded causes of action are tacit universal partnership and unjust enrichment. These two concepts are unknown under customary law. They are common law concepts. The <em>Pasipanodya</em> case (supra) does not assist the applicant. In that case, the cause of action was based on the unregistered customary law union. The cause of action was not based on general law as set out in the plaintiff’s summons.</p> <p>In submitting that the provisions of the Act do not apply in this case, the plaintiff is blowing hot and cold. In pleading general law concepts as causes of action, she wants general law to apply in her circumstances. The plaintiff dedicated some paragraphs in her founding affidavit narrating how they lived a life that deserves the application of general law. It would seem that the plaintiff wants a restricted application of general law. If general law applies in the sharing of the parties’ property, therefore all the general law principles must apply. It would be an absurdity and an affront to the proper administration of justice to selectively apply the principles of general law by applying only the two concepts of general law as pleaded by the applicant and turn a blind eye to other general law principles. I was not given any authority for such a proposition which l believe maybe problematic.</p> <p>The court fully appreciates the plaintiff’s unfortunate circumstances. The status of a customary law union has not developed in light of modern trends .The legislature has not intervened to properly guide the parties on how to proceed in the event of termination of the union despite numerous calls from different sections of society<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a>.As a result parties grope in the dark in pursuit of a share in their hard earned properties. While they knock different doors time lapses as in this case. The plaintiff held on to a nullity from 2012 until 2020. Surprisingly the defendant who initially consented to the division of property now raised a sword to destroy the plaintiff’s claim.   </p> <p>            As observed in the <em>Zembe</em> case (supra), it is for the litigant through their legal practitioners to approach the court and properly plead their cases. In this case even if the plaintiff properly pleaded her case, the claim had prescribed. This is so because in the determination of the parties’ rights and obligations general law shall  apply. As such the provisions of s3 (2) of the Prescription Act do not apply.</p> <p>            It is common cause that the summons was issued after the prescriptive period. It was also conceded that the litigation in the community court did not interrupt the running of prescription. On that basis the special plea must succeed.</p> <p>                        The defendant seeks costs on a higher scale. I do not find any justification for costs on a higher scale. The plaintiff’s claim was justified considering that the matrimonial property was not shared except for the technicality of prescription.</p> <p>           </p> <p>Accordingly the special plea is upheld</p> <p> </p> <p>            The plaintiff’s claim dismissed with costs.</p> <p> </p> <p> </p> <p><em>Gasa-Nyamadzawo &amp; Associates</em>, Plaintiff’s Legal Practitioners</p> <p><em>Muhlekiwa Legal Practice</em>, Defendant’s Legal Practitioners</p> <p>           </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> <em>Esther Kusano (nee Ngaru)</em> v <em>Livingstone Kusano and Another</em> HH 647/2</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> <em>Pasipanodya </em>v <em>Muchoriwa</em> 1997 (2) ZLR 182 (SC)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) AT P356F-G</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> 1995 (3) SA 761 (A) at p 767</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Jengwa v Jengwa 1999 (2)ZLR 121 (H),Mtuda v Ndudzo 2000 (1) ZLRr 710 (H)</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Jenke v Zembe</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24020">2021-zwhhc-265.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/265/2021-zwhhc-265.pdf" type="application/pdf; length=354685">2021-zwhhc-265.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/partnership">PARTNERSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tacit-universal-partnership">Tacit universal partnership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div></div></div> Thu, 10 Jun 2021 07:11:13 +0000 Sandra 10040 at https://old.zimlii.org S v Chidhobera & Anor (HH 692-20, CRB CHG 807/19) [2020] ZWHHC 692 (27 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/692 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>THE STATE</p> <p>versus</p> <p>NAISON CHIDHOBERA</p> <p>and</p> <p>EMMANUEL NGORIMA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 27 October 2020</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            CHITAPI J: The proceedings in this matter were referred for review by the learned regional magistrate following scrutiny. The accused persons were jointly charged with contravening s 59 (2) (a) of the Parks and Wildlife Act, [<em>Chapter 20:14</em>] which creates the offence of “hunting any animal on any land.” The accused persons not being permit holders in terms of the Act, hunted for and killed two porcupines within Virginia Farm, Chegutu. They pleaded guilty to the charge and were duly convicted.</p> <p>            Following their conviction, the learned magistrate sentenced them to each pay a fine of $150.00 in default thereof to serve 2 months imprisonment. An additional 6 months imprisonment wholly suspended for 3 years on condition that they do not commit an offence involving contravention of the Parks and Wildlife Act was further imposed.</p> <p>            The learned regional magistrate queried the fact that the learned trial magistrate did not order compensation in terms of s 104 of the Parks and Wildlife Act. The learned trial magistrate submitted that although she took note of the query by the learned regional magistrate, she laboured under the belief that s 104 was permissive or directory and that ordering compensation was in the discretion of the court. She reasoned that the word “may” in the heading to s 104 meant that the court has a discretion to either order compensation or refrain from doing so. Section 104 is couched as follows—</p> <p><strong> “104 Court may order payment for hunting of animal</strong></p> <p>The quoted text is just a subheading. Subsection (1) to (4) of the Parks and Wildlife Act provides as follows—</p> <p>(1) Where a person is convicted of an offence in terms of this Act involving the hunting of any animal, the picking of any plant or the catching of any fish and—</p> <p>(<em>a</em>) the person convicted has appropriated or disposed of any animal, plant or fish which forms the subject of the charge and which has not been restored to the land on which it was hunted or picked or the water in which it was caught, as the case may be; or</p> <p>(<em>b</em>) the commission of the offence has caused the death of an animal or fish or the destruction of a plant or has made it necessary or expedient for an animal or fish to be killed or a plant to be destroyed; the court shall, in addition to any penalty which it may impose on the person convicted, order him to pay—</p> <p>(i) in the case of an animal, plant or fish which was hunted, picked or caught in a national park,</p> <p>botanical reserve, botanical garden. sanctuary, safari area or recreational park, or of any specially protected animal, to the Authority;</p> <p>(ii) in any other case, to the appropriate authority for the land on which the animal was hunted or the plant was picked, or for the water in which the fish was caught;</p> <p>such amount as may be specified in respect of the animal, plant or fish concerned in terms of subsection (2).</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(2) The Minister may on the recommendation of, or after consultation with, the Authority, by notice in a statutory instrument, specify, in respect of different species of animals or plants and in respect of fish, the amount</p> <p>to be imposed in terms of an order made in terms of subsection (1) and may in like manner amend or revoke any such notice.</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(3) The provisions of sections 348 and 349 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]</p> <p>shall apply, <em>mutatis mutandis</em>, in relation to the amount specified in an order made in terms of subsection (1) as if such amount were a fine referred to in those sections and any amount so recovered shall, in accordance with the order, be paid to the Authority or to the appropriate authority for the land on which the animal was hunted or the plant was picked or for the water in which the fist was caught, as the case may be:</p> <p>Provided that, except in the case of the Authority, the appropriate authority shall give security <em>de restituendo</em>in case the judgment of the court which made the order is reversed on appeal or review.</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(4) Where an order is made in terms of subsection (1) on two or more persons, the liability thereunder shall be joint and several unless the court, in its order, apportions the amount which each such person shall be required to pay.”</p> <p> </p> <p>            The provisions of subs (1) of s 104 are clear that the court shall order payment of compensation where the circumstances described therein are proved or established. The amount of compensation is determined by reference to the Statutory Instrument referred to in subs (5) (<em>supra</em>).</p> <p>            The learned trial magistrate mistakenly considered the word “may” in the subheading to s 104 as giving her discretion to order or not order compensation. Section 7 of the Interpretation Act, [<em>Chapter 1:01</em>] provides as follows-</p> <p>            “In an enactment—</p> <ol> <li>Headings and marginal notes and other marginal reference therein to other enactments; and</li> <li>Notes, tables, indexes and explanatory references inserted therein as part of any compilation or revision ... shall form no part of the enactment and shall be deemed to have been inserted for convenience of reference only.”  </li> </ol> <p> </p> <p>Had the learned trial magistrate applied her mind to the whole of s 104 aforesaid as opposed to the subheading, she would have noted that it is compulsory or peremptory to order compensation in circumstances set out in subs 1 of s 104. I must caution that statutory offences are not so easy to determine. A lot goes into it and the judicial officer dealing with statutory offenses should always be mindful of the basic rules of statutory interpretation.</p> <p>The last issue is to determine what should be done about the learned trial magistrate’s omission. It does not appear from the surrounding facts that the accused persons are easily locatable so that the compensation order may be imposed. The learned trial magistrate must however be properly guided for the future when dealing with s 104 of the Parks &amp; Wildlife Act. The appropriate course to adopt in this matter is to find that the proceedings are not in accordance with real and substantial justice owing to the impugned sentence. I accordingly withhold my certificate.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/692/2020-zwhhc-692.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19411">2020-zwhhc-692.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/692/2020-zwhhc-692.pdf" type="application/pdf; length=99543">2020-zwhhc-692.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/meaning-words">Meaning of words</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/14">Parks and Wild Life Act [Chapter 20:14] </a></div><div class="field-item odd"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Mon, 23 Nov 2020 13:00:44 +0000 Sandra 9939 at https://old.zimlii.org