KUNEDZIMWE v MUSARIRI 1999 (2) ZLR 205 (H)

Flynote

Practice and procedure — summons — claim for delivery of goods — no alternative claim for monetary value of goods — whether court entitled to order payment of monetary value of goods instead of specific performance c

Headnote

The respondent had entered into a registered customary law marriage with the daughter of the appellant. The respondent had failed to pay part of the agreed roora or marriage consideration to the appellant, namely, seven head of cattle. At the time, this agreement had been made, the sort of cattle which the parties had in mind were worth $350 per head. Some sixteen years later, these cattle had still not been handed over to the appellant, so he instituted an action in the magistrates court, claiming the delivery of the seven head of cattle. By this time, the value per head had increased considerably. The appellant did not claim the value of the cattle in the alternative. The respondent admitted liability to deliver the cattle. The magistrate ruled that he did not have jurisdiction to order specific performance and ordered instead that the respondent should pay the appellant $350 per head of cattle for the seven cattle. e

Held, that the magistrate did have jurisdiction to award specific performance. In terms of s 14(1)(d) of the Magistrates Court Act [Chapter 7:10], a magistrate has jurisdiction to entertain a claim for the delivery of specific items, provided that the value of the items is within his monetary jurisdiction. The total value of the cattle fell within his monetary jurisdiction.

Held, further, that as the sole remedy sought was specific performance, there was no basis for denying the specific relief he had sought. It did not matter that the respondent would now have to pay far more than $350 per head to purchase these cattle to hand over to the appellant. This was an obligation under customary law and it must have been within the contemplation of the parties that if the cattle were only going to be purchased and handed over years later than the agreed date, the value of cattle per head would have gone up.