NDOU J: The
applicant is 1st respondent's wife.
The applicant seeks an order in the following terms:
“Terms
of the final order sought
That the provisional order granted by this honourable court
be confirmed in the following manner.
1.
The
proceeds of the mine at Inyathi be and are hereby shared equally amongst the
applicant and 1st respondent after all the expenses have been paid.
2.
The
1st respondent be and is hereby ordered to pay costs of suit on an
attorney-client scale.
Interim relief
granted
Pending the finalization of the matter under HC 2079/10, the
applicant be granted the following relief:
1.
The
1st respondent is interdicted from barring the applicant to work at
the mine in Inyathi.
2.
The
1st respondent is ordered to
pay all the money realized from the mine at every sale of gold before paying
for the expenses in trust either at Cheda and Partners or Messrs Moyo and Nyoni
Legal Practitioners, and the money be shared equally between the applicant and
the 1st respondent after the expenses incurred have been paid.
3.
If
the 1st respondent does not comply with paragraph (1) and (2) he is
interdicted from working and collecting any revenue at the mine in Inyathi, the
applicant is to collect all the revenue until the 1st respondent
complies with paragraph (1)and (2) of this order.
4.
The
2nd respondent be and is hereby interdicted from the operations of
the mine in whatever manner, including setting her fast [sic] on the mine at
Inyathi until the finalization of the matter under HC 2079/10.”
The salient facts of this matter are the following. The applicant and 1st respondent
are married to each other in terms of the Marriages Act [Chapter 5:11]. 1st respondent has issued out
summons for divorce under case number HC 2079/10. There are two children of the marriage born
12 June 1999 and 11 July 2004 respectively.
The 1st respondent acquired the mining business in 1994 long
before he met the applicant. The 1st
respondent started living with the applicant in 1998. The mine is registered in the name of the 1st
respondent. The 2nd
respondent is employed as a manageress at the mine. The applicant's case is that 2nd
respondent is the source of her marital problems as she happens to be in a love
relationship with the 1st respondent. This explains why 2nd respondent
was cited in these proceedings.
Applicant made allegations that 1st respondent has become so
irresponsible to the extent that he failed to maintain her and the two
children. She averred that their eldest
son was expelled from boarding school on account of 1st respondent's
failure to pay fees. The 1st
respondent has stated that this averment is false as the boy was still at
school and he produced documentary proof showing that he in fact paid fees in
full for the boy. The applicant further
misled the court by averring that the children were both in boarding school yet
the younger child does not even attend school.
He goes to crèche. The 1st
respondent gives the applicant a portion of the mine's production of gold and
retains the remainder. The proceeds from
the gold is supposed to go towards the maintenance of the applicant and 1st
respondent. The applicant appears to be
seeking maintenance through an interim interdict. The applicant is misguided in her
approach. She should approach the
maintenance court for proper remedy. She
has made false averments on the plight of the children to win the court's
sympathy. On the basis of such
falsehoods the application should fail – Venter
vs Van Groan 1929 TPD 435 and Graspeak Investments P/L vs Delta Corporation P/L & Anor 2001
(2) ZLR 551 (H) at 555.
Further, the applicant has premised her application on the
basis that she is in some partnership with the 1st respondent. From the evidence in the paper there is no
such partnership. As far as the position
of the 2nd respondent is concerned, the effect of the remedy sought
is to suspend the 2nd respondent from her duties without following
the relevant necessary provisions of the Labour Act.
The applicant has used the above-mentioned falsehoods and
misrepresentations about the plight of the children to portray a desperate and
urgent situation. From the foregoing,
therefore, the applicant is devoid of merit.
I accordingly dismiss it with costs.
Cheda & Partners, applicant's legal practitioners
Moyo & Nyoni, 1st
respondent's legal practitioners
