UCHENA
J:
The
plaintiff is the defendant's estranged husband. They married each
other on 9 March 1990 by ante nuptial contract and according to the
matrimonial laws of South Africa at Simonstown, South Africa. They
were blessed with three children who have all attained the age of
majority. The couple immigrated into Zimbabwe in 1991, were they
established businesses and have chosen it to be their country of
domicile. In 2006 the plaintiff issued summons seeking a decree of
divorce and ancillary orders.
They
processed their case with reasonable speed resulting in its appearing
on the unopposed roll before Kudya J on 15 May 2008. Issues were
raised on the marriage certificate produced and the custody proposed
leading to the case being postponed sine die. It remained dormant
until it resurfaced on 22 November 2013 by letter from Coghlan, West
& Guest (the plaintiff's Legal Practitioners), addressed to the
Registrar asking him to;
“Please
reconvene the Pre-Trial Conference in this matter (which was thought
to be settled, but has not been capable of conclusion on an
uncontested basis).”
The
letter was copied to Atherstone & Cook the defendant's legal
practitioners.
A
perusal of the file reveals that prior to its set down on the
unopposed roll the parties had filed, a consent paper which they
wanted to be made part of the court's order. The defendant had
withdrawn her plea and filed an affidavit of waiver. The plaintiff
had filed his affidavit of evidence and presented the unsatisfactory
copy of the marriage certificate. But for the presiding Judges
queries a decree of divorce and ancillary orders emanating from the
consent paper could have been granted.
The
parties in-explicably held another pre-trial conference at which the
following issues were referred to trial.
1.
The distribution of the couples' matrimonial home; and
2.
The distribution of their movable assets.
After
a perusal of the file in preparation for the trial set down for the
28th
January 2015, I on the morning of the trial date invited counsel for
the parties to my chambers in terms of r 183 of the High Court Rules
1971 which entitles a judge to “call into his chambers the counsel
for the parties with a view to securing agreement on any matters
likely to curtail the duration of the trial.”
This
was necessitated by my having observed from the file that both
parties had not resurrected the issue of the movable assets in their
papers filed after the case had come back from the unopposed roll.
Counsel for both parties agreed that they had settled that issue. I
with both counsel's consent deleted it from the issues in the joint
PTC minute.
When
the trial opened in court Mr Fitches
for the plaintiff gave his opening address, after which Mr Girach
for the defendant raised a point in
limine
on whether the plaintiff was going to call an expert wittiness to
lead evidence on the South African law which is applicable to the
distribution of the parties' matrimonial home. He required this
information so that he can prepare his cross-examination on the basis
of that information. Section 25 of the Civil Evidence Act [Chapter
8:01],
requires that expert evidence be led to prove to the court the
applicable foreign law as the court cannot take judicial notice of
foreign law. It provides as follows;
“(1)
A court shall not take judicial notice of the law of any foreign
country or territory, nor shall it presume that the law of any such
country or territory is the same as the law of Zimbabwe.
(2)
Any person who, in the opinion of the court, is suitably qualified to
do so on account of his knowledge or experience shall be competent to
give expert evidence as to the law of any foreign country or
territory, whether or not he has acted or is entitled to act as a
legal practitioner in that country or territory.
(3)
In considering any issue as to the law of any foreign country or
territory, a court may have regard to -
(a)
any finding or decision purportedly made or given in any court of
record in that country or territory, where the finding or decision is
reported or recorded in citable form; and
(b)
any written law of that country or territory; and
(c)
any decision given by the High Court or the Supreme Court as to the
law of that country or territory.
(4)
The law of any foreign country or territory shall be taken to be in
accordance with a finding or decision mentioned in paragraph (a)
of subsection (3), unless the finding or decision conflicts with
another such finding or decision on the same question.
(5)
For the purposes of paragraph (a)
of subsection (3), a finding or decision shall be taken to be
reported or recorded in citable form only if it is reported or
recorded in writing in a report, transcript or other document which,
if the report, transcript or document had been prepared in connection
with legal proceedings in Zimbabwe, could be cited as an authority in
legal proceedings in Zimbabwe.”
The
section is clear on the court not being allowed to take judicial
notice of foreign law. It also does not allow the court to presume
that foreign law is the same as Zimbabwean law. Subsection 2
prescribes how foreign law should be proven through the evidence of a
witness who is an expert on that foreign law. In considering any
issue as to the law of a foreign country or territory the court can
in terms of subs 3, 4 and 5 have regard to;
(a)
Authoritative citable reported or recorded decisions of the courts of
that country whose decisions do not conflict with another such
finding or decision on the same question.
(b)
Written law (i.e statute law) of that country.
(c)
Zimbabwean High Court or Supreme Court decisions on what the law of
the country in issue is. This refers to, proof through precedents by
Zimbabwean superior Courts on the foreign law in question.
Mr
Girach
is therefore correct on the need to lead evidence on the South
African law applicable to the distribution of the parties'
matrimonial home or the need to prove such law in terms of sub
section 3 (a) (b) or (c).
Mr
Fitches's
response was that there is no need for such evidence because the
parties filed a consent paper which still stands. A perusal of the
file confirms that the consent paper was not withdrawn. It still
stands as the parties' agreed position. Gubbay CJ in the case of
Tyser
v
Tyser
2001 (1) ZLR 134 (SC) at 137 E-F cited by Mr
Fitches and
commented on with approval by Mr Girach
said;
“Mr
de
Bourbon
submitted that the learned judge was wrong in stating that a party
who has signed a consent paper may resile therefrom at his or her
volition at any time before the court embodies it in an order. I
agree that to be relieved, of the consequences of having entered into
a consent paper, albeit not yet sanctioned by the court, is not
dependant simply on change of mind. Sound grounds for seeking to
withdraw must be established.”
A
consent paper signed by the parties after they will have made
admissions at the pre-trial conference as happened in this case, is a
compromise agreement which embodies, admissions which cannot be
withdrawn without complying with Order 27 rule 198 of the High Court
Rules 1971, which provides as follows;
“The
court may at any time allow any party to amend or withdraw any
admission so made on such terms as may be just.”
Rule
189 therefore requires admissions to be formerly withdrawn. In terms
of Order 27 rule 185 admissions can be made through “pleadings or
otherwise in writing”. Admissions can therefore be made in writing
through a consent paper.
There
is no court order granting the defendant a right to withdraw the
admissions she made in the consent paper.
Parties
cannot simply request for another PTC as happened in this case on the
basis of an amended plea. The defendant's plea and defence had been
withdrawn, raising the question, as to, which plea was the defendant
amending? One cannot, amend, a withdrawn plea as it ceases to exist
on being withdrawn.
My
ruling on the two issues which arose is as follows;
1.
The consent paper is still in force and must be properly withdrawn
before the trial of this case can proceed.
2.
In the event that this case proceeds to trial the plaintiff will be
required, to prove the South African law applicable to the issue of
the distribution of the parties; matrimonial home.
3.
Costs shall be in the cause.
4.
The case is postponed sine
die.
Messers
Coghlan, West & Guest (Incorporating Stumbles & Rowe),
plaintiff's legal practitioners
Messers
Atherstone & Cook, defendant's legal practitioners.
