The
applicant and the respondent married each other in 1997. They married
in Lebanon, according to Islamic Religious Law of the Jaafari
Confession.
They
divorced in terms of a release contract dated 16 August 2012. They
are both Lebanese but both stayed in Zimbabwe before divorce and the
respondent still does. The applicant and the children born to the
marriage now stay in Lebanon. The applicant is however not staying
with her children as they stay with their step mother, the
respondent's new wife. The applicant was aggrieved by the
respondent's placing of the children under his new wife's custody
and her being denied access to them.
The
applicant, relying on a document purporting to annul the original
release agreement on terms which had not yet been implemented as at
31/3/2014, applied to this court for an order granting her custody of
their minor children, namely, N Mokbel born 5 October 1998; O Mokbel
born 30 March 2001; P Mokbel born 20 November 2004; and Q Mokbel born
7 September 2007.
Counsel
for
the respondent submitted that this court has no jurisdiction and
cannot hear this application because the document being relied on by
the applicant was fraudulently obtained and was appealed against.
Counsel
for the applicant submitted that the appeal noted by the respondent
is not valid because of the way it was worded.
Counsel
for the respondent's response, which was prompted by the court
asking the parties to address it on the effect of section 25 of the
Civil Evidence Act [Chapter 8.01] on this case, was that this court
cannot take judicial notice of foreign law, and cannot therefore,
without hearing evidence to prove that foreign law, determine whether
or not the appeal referred to is valid or not.
Section
25 of the Civil Evidence Act [Chapter
8:01]
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.”
Section
25(1) of the Civil Evidence clearly bars this court from taking
judicial notice of foreign law or presuming that the law of another
country is the same as the law of Zimbabwe.
Counsel
for the respondent is therefore correct when he says we cannot
presume that Lebanese notices of appeal should be done in the way
they are done in Zimbabwe. It cannot therefore be said, without
proving Lebanese Law, that the notice of appeal is invalid.
Section
25(3) of the Civil Evidence Act prescribes the procedure a party
should follow in proving foreign law. In spite of that clear
procedure, counsel for the applicant
did
not take her allegations any further besides insisting on the
applicant's application being heard and granted as custody issues
are the same irrespective of the foreign law aspects raised by
counsel for the respondent.
The
need to prove Lebanese law was very important in this case because of
the type of marriage the parties entered into and the law applicable
to both divorce and custody in Lebanon which is faith-based and has
specific provisions on who between the spouses should have custody.
This
court cannot hear and determine a case based on foreign law before
that foreign law which it must use to determine the case has been
proven. We are in this case dealing with existing Lebanese court
orders based on Islamic Law which this court can only deal with after
the applicant leads evidence on it. Proceeding without such evidence,
as suggested by counsel for the applicant is unlawful and leads to
the danger of contradicting existing orders of foreign courts granted
by judicial officers who are fully aware of the import of their
country's laws.
The
pitfalls are demonstrated by the following;
1.
The marriage is in terms of Islamic Religious Law in Lebanon-Jaafari
Confession which the applicant did not prove to this court.
2.
The invalidity of the respondent's appeal has not been proven
before this court. It is insufficient to rely on the respondent's
wording to attack the validity of process based on foreign law.
3.
Even if the appeal had been proved to be invalid, the issue of
custody had to be proved to not have been implemented at the time the
annulment of the release agreement is alleged to have taken place.
The fact that the respondent is already exercising custody through
his new wife seems to indicate that custody is not an outstanding
issue.
4.
Part of the contract, on page 15 of the record, states that “this
contract, with all what relates or derives therefrom, as issues in
Lebanon or the State of Zimbabwe, shall be subject to the Lebanese
Law, and more particularly the Islamic legal rules-the Jaafari
Confession, regarding divorce and its effects,”
which this court cannot take judicial notice of.
5.
The Release agreement, on page 12 of the record, provides for the
“divorce
execution, according to the texts of the Islamic Law in
Lebanon-Jaafari Confession only, while excluding any other rules and
laws, including the State of Zimbabwe.”
This
means the application of Zimbabwean laws is specifically excluded by
the Release Agreement.
The
applicant's counsel should therefore have seriously considered our
own section 25 of the Civil Evidence Act referred to above and this
clause before recklessly bringing this application and pursuing it to
a hearing before this court without complying with section 25 of the
Civil Evidence Act.
6.
On the issue of custody, the Release Agreement specifically states,
on page 12 that; “the first party (respondent) is the compulsory
tutor of the children,” and Annexure B, on page 37, describes the
respondent as the children's 'mandatory custodian', suggesting
that custody under Islamic Law is prescribed by the law. This means
evidence had to be led on the applicable foreign law.
7.
The alleged annulment agreement, document on page 18, specifically
states that “each of the two parties has the right to resort to the
competent court in Lebanon or abroad, to preserve their rights and
consider the terms of the agreement that have not been implemented as
if they didn't exist.”…,.
The
respondent has been exercising custody rights as demonstrated by the
children being in his new wife's custody. It therefore seems this
part of the agreement has already been implemented and can therefore
not be covered by the alleged Annulment Agreement.
I
am therefore satisfied that the applicant's application cannot
succeed.
Counsel
for the respondent submitted that the application should be dismissed
with costs de
bonis propiis
because this court does not have jurisdiction to hear this
application and this was brought to the applicant and his legal
practitioners through the respondent's opposing affidavit.
It
is not correct that this court does not have jurisdiction, as it can,
subject to the foreign law being proven to it, exercise
jurisdiction….,.
It
is therefore ordered as follows;
1.
That the applicant's application be and is hereby dismissed.
