Margret Kadira v Lovemore Motsi and A Borerwe

### Preamble
1
HH 56-12
HC 784/11
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MARGRET KADIRA

versus

LOVEMORE MOTSI

and

A BORERWE

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 25 February 2013

Opposed Application

N Bvekwa, for the applicant

The first respondent in person

The second respondent in default

KUDYA J: This is an application for the review of the second respondent’s decision at Guruve Magistrates Court in case number C 08/10. The grounds for review are properly set out on the face of the application. The procedural irregularities on which the application is based were that the second respondent was obliged to conduct a trial rather than an enquiry, secondly, that he failed to distribute 10 head of cattle and the Muzarabani stand and lastly that he did not keep a record of the proceedings of 20 September 2010.

On 13 September 2010, the applicant issued summons out of the magistrates’ court sitting at Guruve seeking the distribution of the matrimonial assets acquired during the subsistence of her customary law union with the first respondent. The applicant and first respondent appeared before the second respondent on 20 September 2010. She was asked to and did state her claim and the grounds upon which it was based.  She basically narrated her contribution to the matrimonial estate and averred that the first respondent had sold some of the cattle in the matrimonial estate hence her claim for all the remaining cattle. The second respondent then requested the first respondent to respond to which he simply denied ever selling some of the cattle. The trial magistrate then adjourned the proceedings indefinitely and requested the two to make regular checks with the clerk of court. On 29 November 2010 she uplifted the trial magistrate’s order, annexure B. Annexure B is entitled “Judgment” and reads:

“Applicant to get the rural homestead, 1 x plough, 1x barrow, 1 x cultivator, 4 bovines this includes the 2 ‘dzehumayi’ which rightly belong to applicant.”

The first respondent opposed the application on the ground that the order granted was “more or less a consent judgment” for which a record of proceedings was not kept by the trial magistrate but did not oppose remittal of the case to a different magistrate for re-trial.

I am satisfied that the second respondent wrongly turned an action into an enquiry. The magistrate’s court is a court of record. The second respondent was obliged by law to keep a full record of what transpired during the proceedings including what each party before him stated. He failed to do so. These are procedurally irregularities that go to the root of his “judgment”. The proper thing to do in these circumstances is to set aside the proceedings conducted by the second respondent and to remit the case for a fresh trial before a different magistrate at Guruve. It would not be proper to recognize the determination that the second respondent made on 29 November 2010.

Accordingly, it is ordered that:

The proceedings held by the second respondent at Guruve Magistrates Court in case number C 08/10 are set aside.

The matter is remitted for a fresh trial before a different magistrate at Guruve Magistrates’ Court.

The first respondent shall pay the applicant’s costs for this application.

Bvekwa Legal Practice, the applicant’s legal practitioners