The
applicant in this matter was seeking for an order in the following terms -
“It
is ordered that:
(a)
Applicant's late filing of this review application be condoned;
(b)
On review, the judgment of the Provincial Magistrate under case CC383/94 (local
courts) is quashed and rescinded and in its place, an order be made referring
the case to be heard de novo before a different provincial magistrate;
Alternatively
to (b) above
(c)
The court proceedings of the provincial magistrate court (local courts) under
case CC383/94 declared a nullity and the matter be referred to be heard de novo
before a different magistrate; and
(d)
First and second respondents pay costs of this application, only if they oppose
his (sic) application.”
This
judgment relates to an application for condonation for the late filing of an
application for review. The delay is extraordinary inordinate in that it is a delay
of some twelve (12) years.
Her
reason for not filing the application timeously was that she had only allegedly
found out about the court order for the first time in September 2006. It was
her story that she had waited from 1994 on the understanding that case number
CC383/94 had been postponed sine die until the last child of their former
marriage attained the age of eighteen (18) years. Thereafter, the matter
relating to the division of their matrimonial property would be adjudicated
upon. She, however, had to bring up the matter earlier because their last child
was no longer being looked after by the first respondent. The minor child was,
instead, being looked after by his sister who is another child of the parties.
Her
explanation is simply untenable and unacceptable. She was represented by a very
senior legal practitioner and so was the respondent. She wants the court to
accept her suggestion that when the matter went to the Community Court the two
legal practitioners went into the Presiding Officer's office; they emerged from
there telling her that the matter had been postponed sine die but the
respondent was ordered to pay her $10,000= as a small interim payment to her
pending the final resolution of the issue relating to the share of the
matrimonial house and other property – which was going to be done after the
last child had turned eighteen (18) years. The sum of $10,000= was a lot of
money in 1994 which cannot be described as a small amount paid as a stop-gap
measure for her to put in her pocket so that she could start a small home-grown
business. Her legal representative had no reason to mislead his own client. It
is for the above reasons that I find her explanation untenable and
unacceptable.
What
then are her prospects of success on the merits?
The
parties' marriage was dissolved on 28 August 1992. At divorce she was awarded
the following property:- a kitchen table and 4 chairs, stereo, double bed and
mattress and half share kitchen utensils.
The defendant was ordered to buy her a two-plate electrical stove. The
court made an award for her maintenance in the sum of $100= per month which was
effective from June that year.
The
defendant was awarded the custody of all the five children with the plaintiff
having reasonable access. The reason for awarding the custody of the children
to the defendant was because the plaintiff used to suffer bouts of mental
challenges time and again.
Two
years later, the applicant went back to court claiming “half share from sale of
house, property and custody.” As can be seen from her claim she was, in
addition to the claim of a half share of the proceeds from the sale of the
matrimonial home, claiming, again, a share in the other property and custody of
the children - matters which had already been adjudicated upon by the court at
divorce. In its judgment on the claim for half share from the sale of the house
the court recorded the following -
“Defendant
to pay plaintiff $10,000=. Terms of payment to be arranged between their legal
practitioners respectively. No order as to costs.”
It
is clear from the above that the applicant got her share of the value of the
house. She admits receiving the money but contended that she got the impression
that the money was just to cushion her so that she could have some money in her
pocket to start a business. Why would the respondent have given her such a
large sum of money if that was not her half share of the house. Ten thousand
dollars in 1994 was indeed a large sum of money. The respondent would not
gratuitously part with such kind of money to assist a woman he had just
divorced. The applicant's assertion is difficult to understand.
More
difficult to follow is the suggestion that the two legal practitioners told the
parties that the matter had been postponed sine die until the last child turned
eighteen (18) years.
In
the light of the foregoing I hold a view that the prospects of success on the
merits are non-existent.
In the result, her application for condonation
of the late filing of the application for review is devoid of any merit and is
accordingly dismissed with costs.
