Judgment No. HB 74/2004

                                                                                    Case No. HCA 84/2001

CONCERN NYONI

Versus

GRACE MOYO

IN THE HIGH COURT OF ZIMBABWE

CHEDA & NDOU JJ

BULAWAYO 7 OCTOBER 2002 AND 27 MAY 2004

J Sibandafor applicant

J Moyofor respondent

Civil Appeal

            NDOU J:        The respondent issued a summons out of the Magistrates’ Court claiming a share of assets acquired during the customary marriage.  The marriage was not registered.  As this was an unregistered marriage there was no accompanying prayer for an order for divorce.  Before the hearing the issue of movable property had largely been resolved except for a few items.  We are not going to concern ourselves with these movable assets as the notice of appeal deals only with the issue of the just and equitable distribution of the matrimonial home.  I say so because of the appellant’s representative submitted during the trial in the court a quo-

“We acknowledge the marriage and we accept she is entitled to a share but what we are querying is degree of contribution”.

            In the notice of appeal, which the appellant personally drafted, he says-

“I hereby appeal against the judgment passed by Magistrate N Vusango on 24 May 2001.  While I agree to give Grace Moyo something, I feel selling and giving her half price of house number 21396 Pumula South is too much considering that financially she did not contribute anything to the construction of the house …  I request to be given time to buy out Grace Moyo at one quarter the price of the house …” (Emphasis added)

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Before dealing with the merits of the appeal it is perhaps necessary to deal with the point raised in limine by the respondent.

Point in limine

            The respondent stated that in terms of order 31 rule 2(1) of the Magistrates’ Court (Civil) Rules the appellant was expected to note his appeal within twenty-one (21) days from the date of judgment.  In casu, the date of the judgment is not apparent from the judgment itself.  The only indication in the record of the possible date of the judgment is in appellant’s notice of appeal giving 24 May 2001 as the date of judgment.  It would appear the appeal was only noted on 5 July 2001.  If these dates are correct by then the twenty-one days had expired.

            Accordingly, the respondent submits that the appeal is out of time and condonation was neither sought nor granted, the appeal should therefore be dismissed with costs.  Order 31 rule (2), supra, provides:-

            “1.       An appeal may be noted within –

1. twenty-one days after the date of the judgment appealed or;
2. fourteen days after the delivery to the clerk of court by the magistrate of a written judgment in terms of subrule (1) of rule 1 whichever period is longer.”

Thus an appeal need not be filed within 21 days of the date of judgment.  It can even be filed months later after the date of judgment, provided that it is within fourteen days of a written judgment having been handed to the clerk of court by the magistrate.  There are, unfortunately, no dates in the record of the proceedings in the court a quo.  It is difficult to say when the twenty-one or fourteen days, whichever is the case, begin.  There is no date when the court order was made and there is no date on which the reasons for the judgment were delivered to the clerk of court.  In the

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absence of these dates it cannot seriously be argued with certainty that the appeal was noted out of time.  Order 31 rule (2) makes reference to ‘judgment’.

            What is worth noting is that the word ‘judgment’ when used in the general sense comprises both reasons for judgment and the judgment or order itself.  In its technical sense, the word is the equivalent of ‘order’.  In casu, because the rules are dealing with appeals the word judgment is used in its technical sense because there can be an appeal only against the substantive order made by a court not against the reasons for judgment – Administrator, Cape & Anor v Ntshwaqela & Ors 1990 (1) SA 705 (A); Ngubane vSA Transport Services 1991 (1) SA 756 (A) at 772D-E and Herbestien and Van Winsen:  The Civil Practice of the Supreme Court of South Africa (4^th Ed) by L Van Winsen; A C Cilliers and C Loots at 679.  This is a case where there is sufficient cause shown, to excuse the appellant from compliance with above Magistrates’ Court rules (i.e. assuming there was non compliance in the first place)  Salooje & Anor v MNO v Minister of Community Development 1965 (2) SA 135 A.  The need to date judgments by magistrates is once again emphasised.  Such dates, as shown in this case, are crucial for determining whether a party has or has not complied with the rules of the court.  This is, unfortunately, not the first time that such ‘dateless’ proceedings or orders end up in this court.  This must come to an end if justice is to be done.

            Accordingly the point in limine raised by the respondent is dismissed.

On the merits

            Mr Sibanda for the appellant, submitted that the court a quo was wrong in awarding the property to the respondent because the parties’ customary union was

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unregistered.  This submission is untenable on account of two reasons.  First, as alluded to above, during the proceedings in the court a quo and in his notice of appeal

the appellant did not take issue with the respondent’s right to a share of the matrimonial assets.  As highlighted above, there was a concession that respondent was entitled to a share.  In view of that concession the courta quo was not faced with the issue that faced the court in Chapendama v Chapendama 1998 (2) ZLR 18; Matibiri v Kumire 2000 (1) ZLR 492 (H) and Mtuda v Ndudzo 2000 (1) ZLR 710 (H).  Second there are judgments of this court where it was held that section 7 of the Matrimonial Causes Act [Chapter 5:13] applies to the distribution of matrimonial property in instances of unregistered customary marriages like this one.  Ntini v Masuku HB-69-03; Matibiri vKumwe 2000 (1) ZLR 492 (H); Muringaniza vMunyikwa HB-102-03 and Haisvosvi v Haisvosvi HB-13-04.

            After hearing evidence adduced by the parties the court a quo shared the matrimonial property number 21396 Pumula South equally between the parties.  The trial court exercised its discretion in this regard.

            It is this order that resulted in this appeal.  It is trite that where a lower court has given a decision on a matter within its discretion, the court of appeal will interfere only if it comes to the conclusion that the court a quo has not exercised a judicial dissolution, SC  it has exercised its discretion capriciously or upon a wrong principle, has not brought its unbiased judgment to bear on the question, or has not acted for substantial reasons.  Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa, supra at pages 918-9; Tjaspomie Boerdery (Pty) Ltd vDrankensberg Bottlers (Pty) Ltd & Anor 1989 (4) SA 31 (T) and Ex parte Neethling & Ors 1951 (4) SA 331 (A); Muteke vMuteke 88-94

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            In this matter, the court a quo exercised its discretion judiciously.  It correctly applied the principles enshrined in section 7 of the Matrimonial Causes Act [without

necessarily making reference to the Act].  It correctly took into account the length of the marriage i.e. 7 years.  It took into account that the appellant mainly funded the building of the disputed property and that it was really the respondent who ran with the project.  She sourced the building materials and seemingly also saw to the supervision of the works.  The appellant was working in Gweru and all he did was to send the money and she did the rest.  It can fairly be inferred from the facts that the respondent made the other usual contributions in the home that a wife will make.  After seven years of marriage and having been so actively involved in the building of the matrimonial house the court a quo found that she was entitled to half share.  The kind of the respondent’s contribution is not easy to quantify in monetary terms.  Where the contribution is difficult to quantify, the court a quo did lean in favour of equal distribution – see Ncube v Ncube HB-88-91 and Ndebele v Nhliziyo SC 64-95.  It is, however, our duty sitting as court of appeal to decide upon the ratio of distribution which we think should have been awarded, and if that ratio considered from all aspects, differs substantially from the ratio awarded by the court a quo, then we must not defer to the judgment of the court a quo but we must give effect to our own estimate – Sandler vWholesale Coal Suppliers Ltd 1941 AD 194 at 200.  Although the latter case dealt with the principle in respect of quantum of damages, it is, in my view equally applicable to the distribution of assets.

            There is no doubt that the respondent is entitled to a lesser share than the appellant.  But is she entitled to substantially lesser than what the court a quo

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awarded?  If the answer is in the positive, and only then, we may interfere.  In my view, the respondent is entitled to a lesser share, but not a substantial lesser.  That

being the case, there is no basis for interfering the exercise of judicial discretion by the court a quo.

            Accordingly, the appeal is dismissed with costs.

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

Job Sibanda & Associates, appellant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners