CASE ANALYSIS – JANE MUSINDO & ANOR VERSUS LEOCADIA KEREKE (NEE MUROIWA) HMA 32/22

This was recently heard appeal from the judgement handed down in the Magistrates Court in Bikita. The case before the court was one for the eviction of a “small house” (1^st Appellant) by the 2^nd Respondent’s wife “main house”. The facts of the case shall be discussed briefly below.

The 2^nd Appellant and Respondent were married in terms of the Marriage Act [Chapter 5:11] formerly known as the [Chapter 37] marriage which provided for one man and one wife in the year 1966. Their union was blessed with children who have all attained majority status. The 2^nd Appellant during the course of his marriage had been unfaithful in the union for a number of times.

The Appellants were involved in an open adulterous affair and sometime in 2015, 1^st Appellant moved into the 2^nd Appellants and Respondents matrimonial homestead called Kureke homestead were she erected a structure of her own and she lived there with the 2^nd Respondent. From the onset of this arrangement no abuse or bad blood was alleged or spoken of – however the Respondent alleges that at some point there was abuse became unbearable to the extent that she, on numerous occasions, had to leave her home to live with her relatives.

The Respondent after amendment of her summons in the Magistrates Court sought

• The eviction of the 1^st Appellant from Kereke homestead and
• An interdict restraining 1^st appellant from continuing with her adulterous relationship with the 2^nd

The 1^ST Appellant raised the points that the Respondent had no locus standi in judicio (legal standing) as well as that the wife had no real rights in respect of the property rather she had personal rights which were enforceable against her husband. The Respondent highlighted that by virtue of her marriage to the 2^nd Appellant she had the right to institute the action. The court accepted the Respondent’s position and granted the order as sought above.

The appellants aggrieved by the decision of the court approached the High Court. On appeal the 1^st appellant averred that she was married to the 2^nd appellant despite him being married to the Respondent. She further highlighted that she constructed a house on the premises and stayed there by virtue of the invitation extended to her by the 2^nd Appellant who was opposed to her eviction from the homestead as he considered her (1^st Appellant) his wife. She further denied abusing the Respondent in any manner. The appellants’ grounds of appeal were as follows:

Grounds of Appeal

1. The court a quo erred in granting an order for eviction of the 1^st appellant from the Kereke homestead when the respondent had dismally failed to establish locus standi for eviction proceedings over an immovable property that is not registered in her name.
2. The learned magistrate misdirected himself by delving into issues of adultery and sanctity of marriages solemnised in terms of [Chapter 5:11] which issues had not been placed before the court for determination. The court went on a frolic of its own and failed to make a determination on the issues which had been placed before it.
3. The court a quo erred by failing to appreciate that the 1^st appellant should not be evicted from the homestead of the 2^nd appellant as she was residing there under his consent.

With regard to the first ground of appeal the court stated that the court had erred by looking at the issues of adultery and sanctity of marriage as they were not the matters that were set to be determined by the honourable court.

With the second point of appeal regarding locus standi the court cited the case of Maponga v Maponga & others 2004 (1) ZLR 63 (H) at 68D-E MAKARAU J held;

“It would appear to me in summary that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. She only has limited rights to the matrimonial home that she and her husband set up. Those rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife’s claim.”

The Respondent (wife in this instance) has limited rights in respect of the Kureka homestead despite it being the matrimonial home as she has personal rights, which can only be exercised against her husband. Further the first Appellant being there by virtue of an invitation extended by the 2^nd Appellant who has real rights in respect of the property is entitled to continue living at the homestead. The court cited the below listed constitutional provisions when highlighting the need for the alignment of property laws with the provisions of the Constitution;

25 Protection of the family

The State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour, within the limits of the resources available to them, to adopt measures for—

(a)  the provision of care and assistance to mothers, fathers and other family members who have charge of children; and

(b)  the prevention of domestic violence.

26 Marriage

The State must take appropriate measures to ensure that—

(c)  there is equality of rights and obligations of spouses during marriage and at its dissolution;

56 Equality and non-discrimination

• All persons are equal before the law and have the right to equal protection and benefit of the law

The Court in addressing the position of locus standi cited the constitutional provisions above and how they should align with the property laws, whilst emphasising that they are trumped by property rights. It was then found that the court erred in its decision as the Respondent failed to satisfy the foundation of her right to institute eviction proceedings (real rights in the property).

In conclusion the court upheld the appeal, preventing the 1^st Appellant from being evicted, and the Respondent being ordered to pay the 1^st Appellant’s costs on an attorney client scale.

This article is for general information purposes only – seek the advice of a Lawyer