MACHONA v MAGISTRATE C. MAUNGA and Another (391 of 2025) [2025] ZWHHC 391 (2 July 2025)

3 HH 391-25 HC 6242/23 Ref Cases DCA 4/23 KUHLENGISA MACHONA versus MAGISTRATE C. MAUNGA (N.O) and CHRISTOPHER CHISANGO HIGH COURT OF ZIMBABWE **TSANGA J** 19 March & 2 July 2025 **Court Application for Review** _I Nderere,_ for applicant _ _ 1st Respondent cited in official capacity _ S Banda,_ for 2nd Respondent TSANGA J: This as in application for review of a Magistrate’s decision in an appeal which emanated from the community court. The applicant, is a farmer who specialises in planting a special variety of maize seeds called K2 Seeds. It is used to make other seed varieties. He launched a case in Chief Nemakope’s court against the second respondent, Christopher Chisango, whose cows he said had damaged his specialist maize crop. This damage was inflicted not once but twice save for the fact that the second time his cattle herder had informed him that an additional party’s cows had also been involved. As to the identity of the offending cows he had been told by his herder who had chased the cows from the field that they belonged to the Chisango because they were branded. This happened some time in 2021. Agricultural officers had come to inspect the extent of destruction and compiled reports. Chisango had been informed from the onset that his cattle had destroyed applicant’s field but had not resorted back to the applicant despite promises to do so. Applicant had then filed a complaint in Chief Makope's court seeking compensation for his damaged crop in the sum of US$4 400.00. Thus in 2022 in the Chief's Court, Chisango according to the record filed from that court, had admitted liability and was ordered by the Chief to compensate applicant in the sum of US$4 400.00 or twelve beasts valued at US350.00 a beast. Resultantly, some of Chisango’s cattle were sold in execution and the sum of US$3 744.00 was recovered and paid to the applicant in settlement of the judgment debt. Only a balance of only US$656.00 remained outstanding. Alas! Despite Chisango having settled most of the debt, he was aggrieved by the finding and proceeded to appeal against the Chief’s decision in the Magistrate’s Court. Fundamentally, his appeal to the Magistrate’s Court was not challenging his guilt. It was premised on the fact the Chief’s court had misdirected itself in failing to make a _**fair**_ assessment of the damages to the plants through an officer from the Department of Agriculture and Rural Extension before making the determination. In other words, he was of the view that the amount he was ordered to pay was merely a hazarded figure as opposed to one emanating from a proven assessment of the damage. Secondly, his appeal was premised on the fact that the judgment was expressed in United States dollars which was in contravention then of SI 142/19 which made the Zimbabwean dollar legal tender and also SI 85/20 which prohibited use of the United States dollar in local transactions. As such, damages in United States dollars were said to be illegal and contrary to the provisions of these statutory instruments. The relief he sought was that the judgment of the Chief’s court be set aside with costs. Applicant has approached this court by way of review against the Magistrate’s conduct of the appeal and who is the first respondent herein. The review is premised on the following grounds. _**Grounds of Review**_ 1) Gross irregularity in the proceedings and decision before and by the first Respondent under Case Number DCA 4/23 in that; a) The first Respondent heard and allowed the appeal under Case Number DCA 4/23 despite the appeal being premised on a fatally defective notice of appeal. b) The first Respondent consequently granted defective and imprecise relief on appeal rendering her decision a nullity. c) The first Respondent heard and determined an appeal under Case Number DCA 4/23 notwithstanding that the judgment forming the subject of the appeal had already been partly executed before the appeal was lodged and as such, by the doctrine of peremption, the second Respondent had lost his right to appeal. _**Alternatively**_ , in that; d) The first Respondent failed to make a determination on the second Respondent's specific grounds of appeal as presented before her under Case Number DCA 4/23 and; e) In re-hearing the case, the first Respondent failed to take into cognisance the record of proceedings in Chief Nemakope’s court, more particularly the second Respondent's admission towards liability and; f) Consequently, the first Respondent failed to direct the second Respondent to restrict his evidence only to those issues which he had not admitted to in Chief Nemakope's court. The first irregularity is said to have been rooted in the notice of appeal itself which is said to have used a wrong form in that the form used did not comply with the mandatory form prescribed in the Local Courts Rules, 1991. Applicant says as a self-actor he had not picked up that error, but it being a legal one it had since been pointed out to him by his practitioner. The second error pertaining to the notice of appeal, is that the relief sought on appeal was defective and imprecise, having merely sought dismissal of the Chief’ decision with no further action stipulated. The Magistrate is also said to have committed a gross error by proceeding to grant that imprecise and defective relief which was sought by Chisango in his defective notice of appeal. _**The Defectiveness of the Notice of Appeal**_ Applicant refers to Rule 11 (2) of the Local Court Rules 1991 which provides as follows: “An appeal to a magistrate court against the decision of a community court in terms of Section 23 of the Act shall be made within thirty days after the date of the decision appealed against or within such longer period as the magistrate court has for good cause allowed, by lodging with the clerk of the magistrate court four completed copies of a notice of appeal in Form LC 3 together with the record of the case in form LC4...” What is particularly key is that the appeal must be made within 30 days. The form to be used is stipulated. Forms serve the purpose of channelling disputes in a uniform manner. As articulated by Bhunu JA in _Yunus Ahmed_ v _Docking Station Safaris Private T/A CC Sales_ SC 70/18: “It also goes without saying that, as a general rule, where the Rules of Court or a Practice Direction prescribe a form to be followed when drafting court process, l _**egal practitioners**_ are enjoined to make use of that form…..The purpose of forms in Rules of Court and Practice Directions is to guide litigants as to the format of pleadings and process for the proper running of the courts.” Not every matter where a wrong form has been used culminating in procedural non-compliance has resulted in a matter being struck off or dismissed. Judges also use their discretion given that ultimately if the choice is between procedural compliance or access to justice the constitutional imperative of access to justice needs to take precedence. This is more so with unrepresented litigants. In terms of s 69 (3) of our Constitution everyone has a right to a fair hearing which also embodies access to court. On discretion and flexibility see the apt remarks by Mambara J in _Agricura Pvt Ltd_ v _Bessy Mwasigalla & Ors _HH 305/24. On the use of the wrong form, the applicant has not shown how he was prejudiced by the use of the wrong form given that he defended the matter to its logical conclusion on the basis of that form. The applicant has also not described in what manner the form used differed materially from the required one. It must also be borne in mind that both parties were then self-actors. It would make little sense in terms of access to justice by ordinary people coming from a court where no lawyers were permitted to hold that a form vitiated entire proceedings in an appeal to the Magistrate’s Court. Whilst a point of law can be raised at any time, it would be difficult to fault the magistrate on review over an issue that was never raised and that did not result in any prejudice. This is more so in the absence of real prejudice to the other party arising from failure to use the stipulated form. Also, the cases cited by the applicant on defective notices of appeals such as _Jensen_ v _Avacalos_ 1993 (1) ZLR 216 (S) do not speak to situations emanating from a local court to a magistrate’s court. The review ground on the use of the wrong form is thus dismissed. The notice of appeal is also said to have been defective in that the relief sought was imprecise and that the magistrate also gave imprecise relief as a result. I will discuss this ground of review more fully in the context of the review as a whole. The third ground of review is that the decision of the local court had already been executed by the time the appeal was lodged. In other words, it had been perempted. On this issue Chisango’s response in the opposing affidavit was that he had paid the amount owing under duress. Critically, he averred that he had in fact reported a criminal case under CR 53/03/23 regarding the manner his cattle had been attached in execution of the Chief’s judgment. That there was a criminal complaint lodged was simply denied by the applicant without further explanation for the basis of that denial. He went no further with his denial other than to reiterate that it was irregular for the applicant to seek to appeal a judgment which had already been executed and for the Magistrate to have heard the appeal under those circumstances. In _Dabner_ v _South African Railways and Harbours_ 1920 AD 583 @ 594 Innes CJ described peremption as follows: “The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with …any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.” If the respondent filed a police report then clearly that conduct was more consistent with someone who had not accepted the Chief’s ruling. Importantly, as stated in the _Dabner_ case above, in doubtful cases acquiescence must be led non- proven. In my view this is one such case and there was no procedural error on the part of the Magistrate in not regarding the appellant’s conduct as constituting peremption. I turn now to the alternative grounds of review. Regarding the failure to take the record into account, s 24 of the Customary Law and Local Courts Act [_Chapter 7:05_] clearly states that the Magistrate hears the matter _de novo_ or afresh. This is in order to make an informed decision since the record availed is generally a scanty one for context as these community courts do not keep detailed accounts of the actual proceedings. Therefore, in hearing the matter afresh, there are no assumptions made on the part of the Magistrate hearing the matter on appeal. As Mr _Banda_ submitted on behalf of his client Chisango, the appeal is an appeal in the narrow sense of the word. On the Magistrate’s alleged failure to make a determination on the grounds raised on appeal, notably the key challenge was on the quantum of damages. The record shows that the applicant brought his own witness. Applicant makes the point that the Magistrate should have taken into account the admission of guilt by Chisango in the Chief’s court, yet it was applicant’s own witness who was not able to be of assistance to the court on the quantum of damages. She was only a field inspector and said assessments and quantification were done by Arex. The basis of the Magistrate’s decision was that the quantification of damages was not done scientifically by an expert. Again, I see no procedural short coming in the Magistrate’s approach conduct as indeed the issue of quantum was fully canvassed. As for the failure to direct the respondent to restrict his evidence to issues he had not admitted, as already stated, the Magistrate was hearing the matter afresh. Whilst the record indeed shows that the Magistrate in hearing the matter afresh engaged at some length on the number of beasts that had invaded the field and whether or not it had been proven that they belonged to the applicant, I do not think that the actual number of beasts that feasted on the maize seed was itself significant. What was important to the decision on damages was simply that the applicant’s own witness was unable to quantify the loss and the applicant himself did not have not any documents to substantiate his loss of 12 tonnes. It would be incorrect therefore to deem the Magistrate’s decision irregular on account that the real issue was not addressed on appeal when it clearly was. With no liability having been found upon hearing the matter _de novo_ and with no damages having been found the Magistrate set aside the decision of the lower court. The relief sought by the respondent in the court below was for the judgment to the court a quo to be set aside. What it effectively meant was there was no liability against Chisango. Section 24 (2) of the Customary Law and Local Courts Act states as follows with regards to decisions that can be made in such appeals: “(2) Upon an appeal being made in terms of subsection (1), the magistrate shall rehear the case and shall give such decision**,** order or direction as he thinks fit.” The provision is clear that the Magistrate can give a decision or order he thinks fit. On the order having been in United States dollars and the Magistrate needing to make a pronouncement of that issue, there was no need on the part of the Magistrate to delve into the issue of currency since no damages were proved. The review lacks merit and is accordingly dismissed with costs. **Tsanga J:……………………………………………………** _Scanlen & Holderness, _Applicants Legal Practitioners _ Mutindi Bumhira Legal Practitioners,_ second Respondent’s Legal Practitioners