DISTRIBUTABLE
(24)
Judgment No.
S.C. 24/02
Civil
Appeal No. 22/01
NTOMBIZODWA
SAUTA v ARON MADONDO
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & MALABA JA
HARARE,
JANUARY 22 & MAY 23, 2002
The
appellant in person
The
respondent in person
MALABA JA:
This is an appeal from a judgment of the High Court sitting as an
appeal court. The High Court dismissed
with costs an appeal against
a decision of a magistrate granting an order declaring the respondent
to be the spouse of the late Loina Sauta.
The
essential facts of the matter are as follows. The appellant is one
of four children of Loina Sauta (hereinafter called
Loina).
In 1979 Loina fell in love with the respondent. They both worked
as domestic workers in Bluff Hill suburb
in Harare where they
resided. At the time she met the respondent Loina had three
children, including the appellant, from a previous
marriage. Loina
and the respondent lived together as husband and wife and had a child
in 1981.
In
1980 Loina lost her employment. She moved to house no. 1636
Old Highfield to live with her parents. On 22 February
1983 she got employment with the Ministry of Finance as a typist
supervisor. She died on 17 April 1998.
On 21 July
1998 an edict meeting was held before a magistrate to choose an
executor. The respondent claimed to be Loinas
husband and
therefore entitled to be appointed executor in her estate. His
claim was opposed by the appellant. The magistrate
who heard the
matter was not satisfied with the evidence adduced. He directed
that the respondent should produce better evidence.
Meanwhile
the appellant and other relatives met before a different magistrate
to have the appellant appointed executrix in Loinas
estate. She
was appointed on 16 September 1998.
The
respondent, who was not present at the edict meeting on 16 September
1998, was not happy with the appointment of the appellant
as
executrix in Loinas estate. Instead of having the order of the
magistrate appointing the appellant the executrix set aside
the
respondent sought to have himself appointed executor by the Master of
the High Court.
The Master
was advised by a provincial magistrate on 29 September 1999,
before he presided over an edict meeting to consider
the appointment
of the respondent as executor in Loinas estate, that the appellant
had already been appointed executrix in the
same estate. He was
also advised that an application to determine the status of the
respondent as Loinas husband was pending
before the magistrate's
court. The Master of the High Court did not process the application
by the respondent to be appointed executor
in Loinas estate.
On 28 June
2000 the respondent renewed the application before the magistrate's
court for an order declaring him to have been
Loinas husband by
customary law immediately before her death. The appellant opposed
the application. The magistrate accepted
the respondents
evidence that he had paid lobola to Loinas father before she died.
He found as a fact that the respondent
was married to Loina in
terms of customary law at the time of her death.
The
appellant appealed against the judgment of the magistrate to the High
Court but SMITH J, with the concurrence of BARTLETT J,
upheld the decision of the magistrate.
On appeal to
this Court the appellant argued that the learned judges erred in
finding that the magistrate correctly found the respondent
a credible
witness. She said the respondent gave contradictory evidence. She
pointed to the fact that in his evidence the respondent
said he gave
his go-between a sum of $400 to pay lobola. The go-between said the
respondent gave him $250 for lobola and $150 as
acknowledgment fee
for having lived with Loina without paying lobola. She also pointed
to the fact that the respondent said he
was not present when lobola
was paid to Loinas father and yet the go-between said he was
outside the house.
On the
finding by the magistrate on the credibility of the witnesses,
SMITH J, who wrote the judgment of the court a quo,
said:
In
an appeal such as this, the court does not have the witnesses
appearing before it. It has to rely on the written record.
The
trial magistrate was in a better position to consider the credibility
of the witnesses who appeared before him. In my opinion,
the
decision of the magistrate has not been shown to be wrong. He
exercised his discretion properly.
I agree with
the learned judge. It is trite that an appellate court should not
lightly interfere with a finding of a trial court
on the credibility
of witnesses unless it is clearly wrong. See Hughes
v Graniteside Holdings (Pvt) Ltd
S-13-84.
The evidence
supported the magistrates finding. The appellant did not
challenge the evidence that money was paid to Loinas
father as
lobola. There was no reason why the go-between would say he paid
money to Loinas father as lobola when he did not
do so. As the
appellant did not challenge the evidence that money was paid as
lobola, the differences as to the amounts paid and
where the
respondent was at the time the money was paid did not affect his
case.
The
respondents case was strengthened by the fact that on 23 November
1993 Loina made a declaration that the respondent
was her husband.
When filling in a form for an application for accommodation to the
Ministry of Construction, she recorded that
he was her husband.
There could not be any better evidence before the magistrate to
support the respondents claim than Loinas
own written
declaration. The parties had lived together as husband and wife
from 1979 and had a child in 1981. In 1993 Loina
still regarded the
respondent as her husband, entitled to live with her in the house she
rented from the Ministry of Construction.
In the
course of the hearing of the appeal, it became apparent that the
respondent laboured under a mistaken belief that once the
decision of
the magistrate was that he was Loinas husband at the time of her
death it automatically meant that he became the executor
in Loinas
estate. It also became apparent that the appellant took the
decision of the High Court on appeal because she too believed
it had
the effect of conferring upon the respondent the status of executor
in Loinas estate.
The order
which the respondent obtained from the magistrate's court was a
declaratur
that he was Loinas spouse at the time of her death. He did not
pray in addition for the setting aside of the order by the magistrate
appointing the appellant the executrix in Loinas estate. That
order still stands and until the respondent has it set aside by
a
competent order the appellant remains the executrix in Loinas
estate.
The appeal
is, accordingly, dismissed. Each party is to pay its own costs.
SANDURA JA:
I agree.
ZIYAMBI JA:
I agree.