Demetria Shoriwa v Kufa Tabvirwa and Marebwanazvo Gofa N.O.

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DEMETRIA SHORIWA
versus
KUFA TABVIRWA
and
MAREBWANAZVO GOFA N.O.


HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 1 November, and 24 November 2011


APPLICATION FOR REVIEW

P. Chiutsi, for applicant
1st respondent in person
2nd respondent not in attendance

       CHITAKUNYE J. The applicant and first respondent are former spouses. The
parties were married under customary law in 1996. Their marriage was blessed with two
children but was apparently not registered. Their customary law union was purportedly
dissolved in the Magistrates Court on 28 October 2010. The presiding magistrate in
dissolving the customary law union indicated that as the value of the Property in question
exceeded her monetary jurisdiction, she could not deal with the issue of the distribution
of the immovable property. She advised the parties to approach the High Court. The court
order read as follows-
       “Divorce decree be and is hereby granted by consent. Custody of two minor
       children namely Pelagia Kudzai Tabvurwa and Tendai Primrose Tabvirwa be and
       is hereby awarded to the plaintiff by consent. As for sharing of property this court
       has no jurisdiction since the value of the property exceeds US$ 2000. Issue of
       property is therefore referred to High Court.”

       The applicant instead of approaching the High Court re-approached the
Magistrate court for an eviction order against the first respondent. The first respondent
opposed that application. On 30 March 2011, the second respondent who was seized with
the application for eviction dismissed the application.
       In dismissing the application the second respondent alluded to the fact that the
question of sharing of the property which the applicant wanted the respondent evicted
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from had already been referred to the High Court. She also pointed out that there was
need for sharing of the property after the dissolution of the customary law union. She
concluded by saying that-
       “accordingly court cannot grant this application for the applicant has approached
       the wrong forum, property in question is matrimonial property subject to its
       sharing which should be done by the High Court due to lack of jurisdiction by this
       court.”

       The applicant was not satisfied with that judgment hence this application for
review. Section 26 of the High Court Act [Cap 7:06] empowers this court to review all
proceedings and decisions of lower/inferior courts, tribunals and administrative bodies.
The grounds upon which this court can review those decisions are contained in s 27.
These are:-
       (i)     absence of jurisdiction on the part of the court, tribunal or authority
               concerned;
       (ii)    interest in the cause, bias, malice or corruption on the part of the person
               presiding over the court or tribunal concerned or on the part of the
               authority concerned, as the case may be;
       (iii)   gross irregularity in the proceedings or the decision.
       In casu applicant contended that there was some gross irregularity in the
proceedings or decision. That gross irregularity is borne out by the fact that, inter alia.
       The second respondent’s reasons for judgment were not argued by either party to
the proceedings. Second respondent’s finding is unreasonable in view of the authorities
provided and ignored by the second respondent which supported applicant’s case.
       The second respondent did not address the grounds for the application for
eviction.
       The first respondent opposed the application. The first respondent’s opposition
was primarily based on his contention that the property in question should be shared as he
had contributed to its development. That appeared to have been his stance from the time
the divorce was granted to now. Even before the second respondent he virtually raised the
same reasons as to the need for sharing of the property rather that for him to be evicted
from a property he had participated in developing without being afforded any share
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thereof. Both parties having been to the magistrate’s court for divorce heard the trial
magistrate indicate that the issue of the immovable property was for the High Court.
Before the second respondent the first respondent raised the similar claim to the property
as a result of which the second respondent referred to the earlier referral to the High
Court which parties had not yet done. Whilst the second respondent may have used the
term matrimonial property, that did not necessarily mean she had made a finding in that
regard. It was more of a reminder to the parties to approach the appropriate court so that
their property rights in respect of the immovable property may be better adjudicated. The
issue of eviction became a question of Can you order eviction of someone who claimed
interests in the property before such interests have been properly adjudicated upon? In
this case the parties had been referred to an appropriate court for the resolution of their
dispute over their interest in the property. It is apparently in those circumstances that the
second respondent felt an eviction order should not be issued. The first respondent had
agued he had interest in the property which entitled him to reside till such a time such
interests were attended to.
       The second respondent was clearly not acting grossly irregularly or unreasonably
in dismissing the application. Her reasons for judgment were not so unrelated to the
issues before her to warrant interference with her decision.
       It is my view that the parties should approach the appropriate court so that a final
and definitive decision is made on their rights and interests in the property acquired
whilst they lived together as husband and wife in terms of customary law. The eviction of
one party will not resolve their dispute over the property.
       All in all I am of the view that there is no merit in the application for review.
Accordingly the application for review is hereby dismisses with costs.




P. Chiutsi, legal practitioners for the applicant
1st respondent, self actor