Modester Benyure v Anah Benyure and 4 Ors

1
                                                                                  HH 116/21
                                                                                 HC 4658/20



MODESTER BENYURE
versus
ANAH BENYURE
and
EMMANUEL BENYURE
and
SLYVESTER BENYURE
and
FRANCIS BENYURE
and
ANDREW BENYURE

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 9 March & 18 March, 2021

Opposed Application


Mr N T Tsarwe, for applicant
T G Musarurwa, for Respondents (barred)

       TSANGA J: The applicant seeks a declaratory order to the effect that she is the sole
occupier of rural homestead in Nyamakosi village, Mutoko. Additionally, she seeks
consequential relief to the effect that any visit by the first to the fifth respondents at the
applicant’s rural homestead in Nyamakosi Village Mutoko without her permission in writing
is unlawful.
       The background to the order sought is as follows. In 1962 applicant Modester
Benyure married her late husband Sylvester Benyure who died in April 2017. Their marriage
was a Christian one. The then Marriage Order in Council of 1938 permitted Africans to
contract Christian marriages. It was therefore essentially a monogamous marriage.
       Materially, at the time of their marriage they were allocated a rural homestead in
Nyamakosi village in Mutoko. This is where applicant has resided and continues to reside.
However, despite the nature of their marriage, her late husband had taken on another woman
being the first Respondent, Anah Benyure, with whom he sired seven children. According to
first respondent’s notice of opposition, the deceased married her in 1971 and later registered
the marriage as a customary marriage. The evidence on record says this was done in 2006.
                                                                                                    2
                                                                                         HH 116/21
                                                                                        HC 4658/20



The deceased and he first respondent resided together at 128 Kambuzuma Township even
though the house had been acquired by the deceased with the applicant as his wife. Sometime
in September 2018, the first respondent with the aid of her children delivered building
materials to the rural home and in February 2020 had instructed that building commences at
the applicant’s rural homestead.
       Aggrieved by this action, the applicant took the matter to Chief Chimoyo’s court who
found that the first respondent never settled in Nyamakosi village for 42 years. She also did
not feature in the village register. As such, the Chief found that she had no right to construct a
homestead at the applicant’s homestead. Aggrieved by the Chief’s ruling, the first respondent
appealed to the magistrate’s court. In accordance with s 24(2) of the Customary Law and
Local Courts Act [Chapter 7:05], the matter was heard de novo. The Magistrate also carried
out an inspection in loco and having heard the matter came to the conclusion that the Chief’s
ruling should prevail. She also stated in her judgment that the first respondent be allowed to
collect whatever reasonable material she could salvage. There was no appeal against this
decision and it remains extant. It is clear from the Magistrate’s judgment that it was never
intended by that ruling that building would continue. In any event, the Magistrate also noted
in her judgment that the chief had in fact stated that it was possible to give the first
respondent land away from the applicant’s homestead.
       The first respondent acknowledges in her opposing affidavit that indeed her children
have taken over building using the rationale that the decision did not affect the children and
their rights even if her marriage to their father was invalid. Applicant on the other hand
argues that the rural homestead is not subject to intestate succession in the sense of giving the
respondent’s rights to the homestead.
       The issue is whether the declarator sought ought to be granted in this instance. It is
trite that in terms of 14 of the High Court Act [Chapter 7:06] the High Court can issue a
binding declarator even with or without consequential relief. It states as follows:
       “14 High Court may determine future or contingent rights
       The High Court may, in its discretion, at the instance of any interested person, inquire into
       and determine any existing, future or contingent right or obligation, notwithstanding that such
       person cannot claim any relief consequential upon such determination.”
                                                                                                      3
                                                                                           HH 116/21
                                                                                          HC 4658/20



       A declarator essentially defines the rights of parties to a suit and is generally put to
use across a wide spectre of legal concerns ranging from commercial, labour, and property
disputes to those in the family law arena to mention some. In the face of a future complaint
such declarator can be relied upon for the guidance of parties. What is necessary for a
declarator to be granted is that the applicant must show sufficient interest and that the subject
matter of the declarator must not be academic or hypothetical in nature for the reason that
courts are not there to play a consultancy role but are there for the resolution of real matters.
For an outlay of the principles, see cases such as Munn Publishing (Pvt) Ltd v ZBC 1994 (1)
ZLR 337; Bulawayo Bottlers (Pvt) Ltd v Min of Labour & Ors 1988 (2) ZLR 129 (H);
Movement for Democratic Change v President of Zimbabwe & Ors 2007 (1) ZLR 257 (H)
       At the hearing the respondents herein were barred for failure to file their heads of
argument on time. The matter was therefore dealt with on the merits in accordance with the
dictates of r238 of the High Court Rules, 1971. The case of Lesley Faye Marsh Private
Limited T/A Premier Diamonds A& Ors V African Banking Corporation Of Zimbabwe
Private Limited And ABC Holdings Private Limited SC 4 /19 clearly lays out the procedure to
be followed where a party is barred for failure to file heads of argument on time. Makarau JA
as she then was stated therein as follows:
       “The law governing the powers of the court in circumstances where a respondent files heads
       of argument out of time is clearly spelt out in r 238(2) (b). The Rule provides:
        “(2b) Where heads of argument that are required to be filed in terms of sub rule (2) are not
        filed within the period specified in sub rule (2a), the respondent concerned shall be barred
        and the court or judge may deal with the matter on the merits or direct that it be set down for
        hearing on the unopposed roll.
         Rule 238 (2) (b) is self -contained and deals exclusively with instances where the respondent
         has filed heads of argument out of time. In the self- contained provision, it is expressly
         provided that a respondent who defaults in filing heads of argument out of time is barred for
         that reason. The Rule then proceeds to regulate how the matter in which the respondent has
         defaulted is to be disposed of. This is to be contrasted with the provisions of r 239 which
         also governs the hearing of applications generally and in the proviso to the rule, the hearing
         of applications where a party is barred………….
         The court or judge may, using their discretion, proceed to determine the matter on the merits
         or negate and nullify the respondent’s defence by referring the matter to the unopposed roll.
         In other words, the court has to either dispose of the matter on the merits or declare it to be
         now unopposed by reason of the default.”
       In dealing with the matter on its merits the applicant must show that:
       1.      It is an interested person
       2.      There is a right or obligation which becomes the object of the inquiry
                                                                                                 4
                                                                                       HH 116/21
                                                                                      HC 4658/20



        3.      It is not approaching the court for what amounts to a legal opinion upon an
                abstract or academic matter
        4.      There must be interested parties upon whom the declaration will be binding
                and
        5.       Consideration of public policy favour the issuance of the declaratory
See Movement for Democratic Change v President of Zimbabwe & Ors above.
Applicant as the spouse who has always lived at this homestead has a real interest in being
declared the occupier of the property against all persons who seek to violate her interests. Her
reason for seeking the declarator despite having obtained two judgments in her favour
explained as arising from the fact that some of the respondents were not parties before the
Chief or the Magistrate and are trying to use the argument that they are the deceased’s
children to get around the Magistrate’s order. There is a real concern on the part of the
applicant to protect her interests from all parties who may now be seeking to violate the order
through the back door and who ought to be bound by a declarator. What is sought is therefore
not moot or of an academic nature. The respondents are adverse parties in all respects to the
declaration sought. They are interested parties upon whom the declaration will be binding.
        However, the consequential relief sought that they should write a letter should they
wish to visit appears to make no sense and applicant’s lawyer agreed it can be expunged. A
declarator can be granted without consequential relief. As regards costs, the respondents by
their actions have necessitated the quest for this declarator by ignoring the magistrate’s order
and must meet the costs of the suit. Whilst costs are sought on higher scale there is no
justification for such under the totality of the circumstances of the case.
        Accordingly:
It is ordered that:
    1. A declaratory order be and is hereby granted to the effect that the Applicant is the sole
       occupier of a rural homestead in Nyamakosi Village, Mutoko.
    2. The 1st 2nd 3rd 4th and 5th Respondents be and are hereby ordered to pay costs of suit on an
       ordinary scale.


Tadiwa and Associates, Applicant’s Legal Practitioners
MC Mukombe & Associates, Respondents Legal Practitioners