HIGH COURT OF ZIMBABWE
GOWORA AND BHUNU JJ
HARARE. 26 January 2006 and 14 June 2006
Mr Matimba, for the appellant
The respondent in person
BHUNU J: At the commencement of this appeal hearing Mr Matimba counsel for the appellant sought a postponement of this matter to a later date. He sought the postponement on the basis that his instructing attorneys had not furnished him with the record of proceedings as he had failed to obtain a copy from the magistrates’ court. Without the record of proceedings he was unable to prepare heads of argument and was ill disposed to make any meaningful submissions without having had sight of the record of proceedings.
The application for a postponement was vigorously opposed by the respondent. She argued that the application for a postponement was only a delaying tactic calculated to prejudice her. She pointed out that it was the appellant who had appealed. He was therefore in the driving seat and ought to have put his house in order. She further argued that the matter has been dragging on and on for a long time to her prejudice. Although she is the defendant she has timeously filed her heads of argument and is ready to proceed with the hearing. Having listened to both parties we observed that if the appellant’s legal practitioners could not find a copy of the record from the magistrates’ court with due diligence they could have obtained a copy from this court’s registrar. This they did not.
It was therefore remiss of the appellant’s legal practitioners to sit back and do nothing about obtaining a copy of the record with the full knowledge that the registrar had copies of the record. Of cause the record of proceedings could not be found at the magistrates’ court because it had been forward to this court for the appeal hearing. In the interest of the due administration of justice we however decided against dismissing the appeal on a technicality. We accordingly stood down the matter to the afternoon to enable counsel to peruse the record before addressing us. We now proceed to determine the matter on the merits.
The appeal is against the decision of the magistrate delivered on the 13th January 2003. The facts giving rise to this matrimonial dispute are to a large extent common cause.
The undisputed facts are that the parties contracted a registered customary law marriage sometime in 1971. At the material time they were both employed by the same employer as domestic workers. The appellant was employed as a cook whereas the respondent was employed as a housemaid.
In 1977 the parties rented the disputed property being house No. 2 Kasipiti Way, Dombotombo Township, Marondera from the Municipality. To qualify for the allocation of the house the Municipality required that the parties should produce a marriage certificate as proof of marriage.
The parties duly complied with that requirement. The house was however subsequently offered to them for sale on a rent to buy basis. They obliged and the marriage endured happily until sometime in 1984 when the parties went on separation for reasons which are not relevant to the determination of this case. The marriage was however officially annulled in 1988.
Following the annulment of the marriage the respondent made no immediate claim for division of their matrimonial property. She belatedly made the claim about 8 years later in 1996.
At the hearing the appellant objected to the respondent’s claim on the basis that it had prescribed in terms of the Prescription Act [Chapter 8:11].
Placing reliance on the case of Pasipanodya v Muchariwa 1997 (2) ZLR 182(S) the trial magistrate correctly ruled that the Prescription Act does not apply to any legal dispute determinable in terms of customary law. That ruling is unassailable considering that section 3(2) of the Act provides that,
“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.” (emphasis supplied)
It must be noted that the section is couched in peremptory terms. It therefore admits of no exception nor does it confer any discretion on the part of the court. It is a command which must be obeyed.
While admitting that the Prescription Act does not apply to matters determinable in terms of customary law Mr Matimba sought to defeat the respondent’s claim on an ingenious argument based on the decision in Moyo v Moyo 1999 (2) ZLR 265(H).
In Moyo case (supra) there was a delay of about 9 years in claiming division of matrimonial property following divorce. In that case the High Court in dismissing the plaintiff’s claim held that after divorce there must be some time limit within which a divorced spouse can institute proceedings for division of matrimonial property. If the property being held is owned or jointly owned by the other spouse, the spouse holding the property should expect a claim after the divorce. But in respect of the other property a spouse is entitled to start again and may remarry and it is disruptive for the other spouse many years later to start claiming that property, some of which may have been disposed of.
In short CHEDA J as he then was ruled that the plaintiff must bring his claim within a reasonable time otherwise he or she is barred. He did not say the claim would have prescribed in terms of the Prescription Act.
In the Pasipanodya case (supra) there had been a delay of about 7 years in bringing the claim for division of the matrimonial property. In the case at hand there has been a delay of 8 years.
We therefore find ourselves in between the Moyo and Pasipanodya cases (supra).
The starting point is that both cases acknowledge that the concept of prescription is unknown to customary law. That much is beyond question.
The History and Extent of Recognition of Tribal Law in Rhodesiaat page 126 explains the principle as follows:-
“There is nothing in African Law analogous to the Civil Law of prescription Exparte Remigio 1959 SRN 660. Delay in bringing an action reacts detrimentally to the plaintiff unless his claim is clear and acceptable.
When an obligation is disputed delay vitiates to vanishing point any claim not brought within a reasonable time......
P 127 – Delay in bringing an action never affects the right to institute proceedings and no right may be acquired by long possession under customary law.”
In my view based on the authorities the issue to be resolved is whether the plaintiff’s claim is clear and acceptable so as to render the delay of eight years reasonable.
The plaintiff’s claim is that she is entitled to a division of the matrimonial home because she contributed towards its acquisition during the subsistence of the marriage. She made substantial contributions because at the material time she was employed earning more or less the same as the defendant.
The basis of her claim is therefore clear and reasonable. She may very well have found it difficult to claim division of the matrimonial property in circumstances where she had deserted the defendant. Viewed from that angle the reason for delay of 8 years appears to be reasonable.
That being the case the trial magistrate must be commended for dismissing the plaintiff’s claim on movables whose existence were not clear due to wear and tear and loss through the passage of time. Her claim to the immovable property however remained clear, solid and unshakeable.
For that reason we come to the conclusion that despite the delay of 8 years the plaintiff was entitled to bring her claim for a division of the matrimonial home.
In saying that it is pertinent to note that section 7(1) of the Matrimonial Causes Act [Chapter 5:13] authorises a court to make an order with regard to the division of the matrimonial property at any time after divorce. The section reads:
“7(1) subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage or at any time thereafter, an appropriate court may make an order with regard to:
the division, apportionment or division of the assets of the spouses including an order that any asset be transferred from one spouse to the other.” (my emphasis)
It is self evident that the enabling Act empowers the court to distribute matrimonial property at any time after divorce. That being the case we proceed to determine the appeal on the merits.
Lot Mambiya the applicant’s nephew and witness confirmed that the house was purchased in 1983 and the respondent left the appellant in 1984. He made it clear in his evidence that the respondent left after the house had been acquired.
Having regard to the unassailable evidence staring him straight in the face it was naive of the appellant to claim that he acquired the disputed house on his own and it is his sole property. That claim goes against the weight of evidence and is clearly unsustainable.
Both parties having been employed as domestic workers their wages could not have been significantly different. They must therefore have pooled their resources together for the benefit of the common household. That being the case it does not seem to matter who paid for what. What matters is that they were contributing to the common household. While appellant was paying for the house the respondent was paying for the other amenities of life for their common good.
It is common cause that at the time of separation in 1984 the house had not been fully paid for. The appellant subsequently paid off the balance after the respondent had left. He also took care of and maintained the house in the absence of the respondent but he also benefited from the use of the property during that period.
Having regard to the above facts the trial magistrate considered in his discretion that the appellant’s contribution was 60% and that of the respondent 40%. We are unable to fault that assessment as it is based on sound reasoning and is backed up by unassailable proven facts.
Initially the plaintiff was claiming various movable properties from the appellant. The trial magistrate dismissed that claim on the basis that the property had not been proven to be still in existence. The property could have been disposed of during the subsistence of the marriage or destroyed through wear and tear.
Neither party appears to have contested that ruling regarding the movables. The contest appears now to have zeroed in on the disputed immovable property being No. 2 Kasipiti Way, Dombotombo Township, Marondera.
From the foregoing it is our unanimous view that there is no merit in this appeal. The magistrate’s decision is beyond reproach.
It is accordingly ordered that the appeal be and is hereby dismissed with costs.
GOWORA J, agrees..........................................
Mafuka & Associates, the appellant’s legal practitioners