GWAUNZA
DCJ: GARWE JA: BHUNU JA: This
is an appeal against the whole judgment of the High Court handed down
on 24 January 2020. The appeal seeks to impugn the court a
quo's
order awarding custody of the parties' three minor children to the
respondent upon the separation of the parties.
The
appellant also challenges the jurisdiction of the court a
quo, and
the
urgency and validity of the interdict granted against him in respect
of the parties' disputed properties.
Although
the parties were also quarrelling about the respondent's right to
access the matrimonial home, that dispute has since been resolved by
the court a
quo in
the appellant's favour. That issue consequently falls away.
The
respondent has in turn abandoned her claim that the appellant be
barred from being heard until he has purged his dirty hands. That
issue has also fallen away for the reason that it has been abandoned
by the respondent.
CHOICE
OF LAW
Although
the parties were married under customary law, they have both elected
to have their matrimonial rights and obligations regulated and
determined in terms of general law.
It is convenient that their dispute be regulated and determined in
terms of general law because of their sophisticated way of life and
ownership of immovable private property.
As
the concept of private ownership of immovable property is unknown at
customary law, it is virtually impossible to determine rights and
obligations pertaining to privately owned immovable property in terms
of any law other than general law. Thus, the appropriate applicable
law in this case is the general law. See Mandava
v Chasekwa
BRIEF
SUMMARY OF THE CASE
The
appellant is the Vice President of Zimbabwe whereas the respondent is
his estranged wife. The two were married under an unregistered
customary law marriage also known as a customary law union. The
marriage was blessed with three minor children. The eldest Tendai
Dominique Chiwenga is aged 9 years whilst Christian Tawanazororo
Chiwenga is 8 years and Michael Alexander Tadisiswa Chiwenga is 6
years old respectively.
During
happier times the parties resided at their matrimonial home situate
at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together
with their three minor children. During the subsistence of the
marriage the parties acquired both movable and immovable property
either jointly or in their personal capacities. The acquired property
includes the matrimonial home, a fleet of cars, immovable business
premises known as Orchid Gardens, along the Domboshava Road, personal
effects and other paraphernalia.
It
however so happened that the marriage later fell on turbulent times
resulting in the appellant initiating divorce procedures under
customary law. In those proceedings he alleged that he had given her
a divorce token known as 'gupuro'.
In
her papers before this Court and in para 8.1 of her heads of
argument, the respondent continues to hold herself out as the
appellant's wife. The divorce issue therefore appears not to have
been resolved.
The
appellant has nevertheless now issued summons against her in the
court a
quo
under case number HC9837/19 claiming custody of the three minor
children in terms of section 4 of the Guardianship of Minors Act
[Chapter
5:08]
and division of the matrimonial property acquired during the
subsistence of the marriage.
The
current proceedings and the parties' relationship are severely
strained, acrimonious and discordant. This is mainly because of the
respondent's arrest on multiple charges of attempted murder of the
appellant, fraud, money laundering and contravention of the Exchange
Control Regulations.
Upon
her arrest, the respondent was detained in custody for a period
spanning 3 weeks from 14 December 2019 to 6 January 2020. She went to
prison without making proper provision for the custody of their three
minor children, possession and administration of her personal
property and effects.
At
the time of her arrest and detention, the appellant had voluntarily
moved out of the matrimonial home. He avers that he returned to the
matrimonial home to fill in the void occasioned by the respondent's
arrest and detention in custody. In the absence of the respondent, he
then assumed de
facto
custody of their three minor children and possession of their
matrimonial property including the fleet of cars, Orchid Gardens,
personal effects and other paraphernalia. His conduct in this respect
was perfectly lawful and undisputed at the material time.
On
6 January 2020, the court a
quo
granted the respondent bail and ordered her to reside at the
matrimonial home
at her specific instance and request.
Upon her release from prison on bail she returned to the matrimonial
home to assume residence as ordered by the court a
quo.
State security guards stationed at the home denied her access to the
matrimonial home.
The
same scenario played out when she sought access to Orchid Gardens
which was also guarded by State security guards. They also denied her
access to the premises.
She
further alleges that she claimed custody of her three minor children
without success, a fact denied by the appellant.
THE
RESPONDENT'S CLAIM A
QUO
Under
the circumstances the respondent submits that she had no option but
to approach the appropriate court on an urgent basis for relief. To
that end, she lodged an urgent application in the court a
quo
for a 'provisional spoliation order' directing the appellant to
grant her the following interim relief on a prima
facie
basis pending the return date for a final order:
1.
Access to the matrimonial home.
2.
Access to and use of her personal motor vehicles.
3.
Access to her clothing, personal goods and effects.
4.
Return of her safes containing her personal property.
5.
An order directing the appellant to return the 3 minor children of
the marriage to the respondent.
6.
An order compelling the appellant to return to the respondent all
furniture, goods and effects removed from the business premises at
Orchid Gardens.
7.
An order denying the appellant access to the court until he has
purged his dirty hands.
8.
An order directing the Sheriff with the assistance of the police to
execute the court a
quo's
order forthwith.
In
the final order the respondent sought the following relief:
9.
That the appellant be interdicted and restrained from interfering
with respondent's use and enjoyment of the matrimonial home and her
business premises at Orchid Gardens, pending the conclusion of the
matrimonial proceedings under case number HC9837/19.
10.
That the appellant be restrained from removing the 3 minor children
of the marriage from the applicant's custody.
11.
That the appellant be ordered to pay costs at the punitive scale as
between legal practitioner and client scale.
Though
the terms of the provisional and final orders sought are somewhat
worded differently, the import and effect of the two orders are
materially the same. This is because they both seek to wrestle
custody of the three minor children and possession of the disputed
property from the appellant and confer them on the respondent.
Basically,
the respondent's complaint was that the appellant had abused his
office as Vice President of Zimbabwe using soldiers to despoil her of
access to the matrimonial home, her children and property.
THE
APPELLANT'S DEFENCE A
QUO
The
appellant objected to the respondent's claim that the matter was
urgent. He further questioned the assumption of jurisdiction by the
court a
quo as
usurping
the function of the Children's Court which is specifically
conferred with the jurisdiction in terms of section 5 of the
Guardianship of Minors Act [Chapter
5:08]
to determine the question of custody of minor children when spouses
begin to live apart.
He
vehemently denied abusing his office as alleged or at all. He denied
that the respondent had custody of the minor children and possession
of the disputed property when he assumed de
facto custody
of the children and possession of the disputed property while she was
in prison.
The
appellant denied having given the guards at the matrimonial home and
Orchid Gardens any orders to deny the respondent access to the
premises.
His
submission to the effect that he had no control over the guards was
not rebutted.
Placing
reliance on the South African case of Fraser
v Children's Court, Pretoria North,
the appellant argued that it was wrong to discriminate against
fathers in matters pertaining to the custody of their minor children.
It
was his further submission that throughout the whole episode, he
acted lawfully as a diligent pater
familias.
At para 3(c) of his opposing affidavit in the court a
quo,
the appellant makes the valid point that as a responsible parent, he
was obliged and duty bound to move into his home and take care of his
minor children and family property when the respondent was detained
in prison. He averred further that, as the father of the children, he
was best suited to have their custody because the respondent was a
drug addict and a psychiatric patient.
THE
COURT A
QUO'S FINDINGS
AND DETERMINATION
On
the basis of the above summation of evidence and arguments the court
a
quo
found that:
(a)
the matter was urgent mainly because of the welfare of the minor
children. It also found that the matter was urgent because the
respondent was arbitrarily evicted from the matrimonial home without
a court order. It also found that spoliation matters are, by nature,
urgent; and
(b)
notwithstanding that the respondent was in prison, she was unlawfully
despoiled of the custody of her children and property.
The
court a
quo
proceeded to make the following final order despite the fact that the
respondent had asked for a provisional order on a prima
facie basis:
“1.
The respondent (Constantino)
is hereby ordered to restore custody of the minor children namely,
Tendai
Dominique Chiwenga
(Born 4 November 2011), Christian
Tawanazororo Chiwenga
(Born 5 November 2012) and Michael
Alexander Tadisiswa Chiwenga
(Born 13 February 2014) to the custody of the applicant (Marry)
within 24 hours of this order.
2.
The respondent (Constantino)
is hereby interdicted and restrained from interfering with
applicant's (Marry)
access to, use and enjoyment of the property known as 614 Nick Price
Drive, Borrowdale, Borrowdale, Harare.
3.
The respondent (Constantino)
is hereby interdicted and restrained from interfering with
applicant's (Marry)
access to, use and enjoyment of the property known as Orchid Gardens
Domboshawa, Harare.
4.
The respondent (Constantino)
is hereby interdicted and restrained from interfering with
applicant's (Marry)
access to, use and enjoyment of the motor vehicles, namely Toyota
Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).
5.
Respondent (Constantino)
is interdicted and restrained from interfering with applicant's
(Marry)
access and/or possession of her clothing.
6.
The respondent (Constantino)
is ordered to pay applicant's (Marry)
costs of suit.”
GROUNDS
OF APPEAL AND ISSUES FOR DETERMINATION
Aggrieved
by the above order, the appellant appealed to this Court on 10
grounds of appeal which in fact raise only three issues for
determination by this Court on appeal. It is cumbersome to
regurgitate all the 10 grounds of appeal. It is however convenient to
dwell on the three issues raised by the grounds of appeal. These are;
1.
Whether the court a
quo
correctly determined that the matter was urgent.
2.
Whether or not it was competent for the court a
quo
to grant a final interdict when the respondent had asked for a
'provisional' spoliation order.
3.
Whether the court a
quo
had jurisdiction to determine the question of custody of the 3 minor
children in light of the provisions of section 5 of the Act.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether the court a
quo
correctly determined that the matter was urgent
As
previously stated, the court a
quo found
that the application was urgent on the basis that it involved the
welfare of minor children and that spoliation matters are generally
treated as urgent. Placing reliance on the well-known case of
Kuwarega
v Registrar General and Another,
the
learned judge a
quo
made a factual finding that the matter was urgent and could not wait
in the queue of ordinary cases. It is trite that such a factual
finding involving the exercise of discretion can only be upset based
on irrationality. See Barros
and Another v Chimuponda.
It
is common knowledge that minor children are a vulnerable class of
persons under the special care of the High Court as their upper
guardian. The same applies to spoliation, a remedy designed to avert
self-help in a democratic civilized society. The remedy forbids the
law of the jungle where survival of the fittest reigns supreme. Thus,
the courts will quickly come to the aide of the vulnerable and the
weak to restore custody and possession where one is unlawfully
deprived of the same by the strong and valiant.
In
this case the respondent approached the court a
quo complaining
that she had been unlawfully deprived of the custody of her children
and possession of her property by her powerful husband abusing State
power. That being the case, the court a
quo
cannot be faulted for granting her application for an urgent hearing.
Doing otherwise would have amounted to abdicating its duty as the
upper guardian of minor children and protector of the weak and
vulnerable. In any case, an application for spoliation is generally
treated as urgent because of the need to stop unlawful conduct
pending the determination of the parties' competing rights.
Looked
at differently, an order granting the urgent hearing of a matter is
generally not appealable. This is for the simple reason that the
order has no bearing on the merits of the application or judgment.
This
is akin to a Bank customer who is rightly or wrongly allowed to jump
the queue. His or her transaction cannot be impugned or rendered
unlawful solely on the basis that he or she has jumped the queue. By
the same token a correct judgment cannot be impugned or rendered
incorrect by the mere fact that the matter was improperly heard as an
urgent application.
In
Nyakutombwa
Mugabe Legal Counsel v Mutasa & Ors
this Court held that a finding of urgency by a court on its own
cannot constitute a substantive ground of appeal. Thus the appeal
against urgency was ill conceived and misplaced.
The
court therefore finds no merit in the appellants' complaint that
the matter was improperly heard as an urgent matter.
The
court now turns to determine the appeal on the remaining two issues.
2.
WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A
QUO
TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?
Despite
the respondent having asked for a 'provisional' spoliation order
based on a prima
facie
case, the learned judge in the court a
quo
went on to grant an interdict which neither party had asked for nor
pleaded. The two critical questions to be answered are:
1.
Was it competent at law for the court a
quo
to grant the respondent a final order when her claim was for a
'provisional' spoliation order? In any case was the provisional
order sought a competent remedy?
2.
What were the parties' rights of custody of their three minor
children at the time of separation?
The
court now proceeds to deal with the two questions in turn.
(a)
Whether it was competent at law for the court a
quo
to grant the respondent an interdict when she had asked for a
'provisional'
spoliation
order?
In
answering this question, it is necessary to set out the applicable
law in some detail as it is apparent that both the court a
quo
and the respondent's legal practitioners were labouring under some
serious misapprehension of the law in this regard.
THE
APPLICABLE LAW
The
answer to this question is a well beaten path at home, regionally and
abroad. In this judgment the word 'injunction' is used
interchangeably with the term 'interdict'
with reference to English and Roman Dutch Law, respectively.
The
respondent approached the court a
quo
seeking a 'provisional' spoliation order on a prima
facie basis.
It
is however trite that a spoliation order being final in effect cannot
be granted as an interim order on the evidence of a prima
facie
right, as happened in this case. See Blue
Ranges Estates (Pvt) Ltd v Muduviri & Anor.
On
this basis, the respondent's quest for a 'provisional'
spoliation order, was misplaced and bad at law.
The
court expects legal practitioners to place before it, cases that are
founded on sound substantive and procedural law. The court cannot and
should not be expected to make a case for the parties. Its role is to
determine the dispute put before it, on the basis only
of the applicable law and procedure.
The
definition and purpose of a provisional order is diametrically
different from that of a final order. C. B Prest in his book, The
Law and Practice of Interdicts
defines
and explains the purpose of a provisional order as follows;
“A
provisional order is a remedy by way of an interdict which is
intended to prohibit all prima
facie
illegitimate activities. By its very nature it is both temporary and
provisional, providing (interim)
relief which serves to guard the applicant against irreparable harm
which may befall him, her or it, should a full trial of the alleged
grievance be carried out. As the name suggests, it is provisional in
nature, as the parties anticipate certain relief to be made final on
a certain future date upon which the applicant has to fully disclose
his, her or its entitlement to a final order that the interim relief
sought was ancillary to.”
In
the South African case of Development
Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors
the
court clarified that its purpose is to preserve the status quo
pending the return day.
Australia
has intrinsically the same definition and purpose. In Re
Brian Charles Gluestein; Exparte Anthony
the
court said:
“Relatively,
the purpose of an interlocutory injunction
is to preserve the position until the rights of the parties can be
determined at the hearing of the suit. A plaintiff seeking an
interlocutory injunction must be able to show a sufficiently arguable
claim to a right to the final relief in aid of which the
interlocutory relief is sought.”
Under
English law, the law remains virtually the same. In Attorney
General v Punch Limited and Anor,
the court held that:
“The
purpose for which a court grants an interlocutory injunction can be
stated quite simply. In American
Cyanamid Co v Ethicon Ltd
LORD
DIPLOCK described it as a remedy which is both temporary and
discretionary. Its purpose is to regulate, and where possible to
preserve, the rights of the parties pending the final determination
of the matter which is in issue by the court.”
The
purpose of a provisional order is the same in our jurisdiction as in
the other jurisdictions stated above. The purpose of a final order is
different from that of a provisional order in that a final order is
conclusive and definitive of the dispute. It finally settles the
issues and has no return date. Once a final order is given the court
issuing the order becomes functos
officio and
it cannot revisit the same issues at a later date.
It
is settled law that the standard of proof for a provisional order is
different from that of a final order.
A
provisional order is established on a prima
facie
basis
because
it is merely a caretaker
temporary
order pending the final determination of the dispute on the return
date.
The
parties have an opportunity to argue the matter again on the return
date.
On
the other hand a final order is obtained on the higher test of a
clear right because it is final and definitive as it has no return
date.
It
so happens that lawyers often seek a final order disguised as a
provisional order as happened in the well-known case of Blue
Ranges Estates (Pvt) Ltd v Muduviri & Anor
and in this case.
That
case lays down the test for distinguishing a provisional order from a
final order despite the presentation of a final order disguised as a
provisional order. In that case MALABA DCJ as he then was had this to
say at p 376:
“To
determine the matter one has to look at the nature of the order and
its effect on the issues or cause of action between the parties and
not its form. An order is final and definitive because it has the
effect of a final determination on the issues between the parties in
respect of which relief is sought from the court…
For
an order to have the effects of an interim relief it must be granted
in aid of, and as ancillary to the main relief which may be available
to the applicant on final determination of his or her rights in the
proceeding.
… The
test is whether the order made is of such a nature that it has the
effect of finally determining the issue or cause of action between
the parties such that it is not a subject of any subsequent
confirmation or discharge.”
In
the South African case of Pretoria Racing Club
v Van Pietersen
SMITH J had occasion to remark that:
“In
order to decide whether such an order is final or not I think the
test must be arrived at by considering what the object of the
proceedings is as a matter of substance. See the Judgment of ROMER LG
in RE Herbet Reeves & Co [1902] 1 Ch 29.”
The
respondent's object and purpose in filing the urgent chamber
application was to obtain custody of her minor children, access to
the matrimonial home and repossession of the disputed property.
It
is self-evident that the interim relief she sought was crafted in
such a way that if granted she would get the primary relief sought.
Through the interim relief she would have obtained access to the
matrimonial home, custody of her children and disputed property.
Such
an order does not fit the definition of an interim order. It is
nothing other than a final order disguised as a provisional order.
The
learned judge a
quo,
perhaps having realised that the interim order sought fitted the
definition of a final order, apparently threw caution to the wind and
granted a final order that had not been sought by the respondent. By
going on a frolic of his own and determining issues not placed before
him, the learned judge fell into grave error and misdirected himself.
The
net result was that the respondent was granted a final interdict when
she had asked for a provisional order after pleading a prima
facie
right.
In
Nzara
& Ors v Kashumba NO & Ors,
this Court held that:
“It
is clear from the court a quo's orders that some of the orders it
granted had not been sought by the other party. It is also clear
that parties had not made any submissions for and against those
orders. They were granted mero motu by the court a quo. It did so
without seeking the parties' views on those orders. There is no
doubt that the court a quo exceeded its mandate which was to
determine the issues placed before it by the parties through
pleadings and proved by the evidence lead.
The
function of the court is to determine the disputes placed before it
by the parties. It cannot go on a frolic of its own. Where a point of
law or a factual issue exercises the court's mind but has not been
raised by the parties or addressed by them either in their pleadings,
in evidence or in submissions from the bar, the court is at liberty
to put the question to the parties and ask them to make submissions
on the matter.”
It
is therefore settled law that a judicial officer is strictly bound by
the issues pleaded by the parties. Going on a frolic of his/her own
and determining issues not pleaded or raised by the parties
constitutes a fatal procedural irregularity.
When
this is taken together with the fact that the respondent sought
relief that was incompetent at law, in respect of her claims to
property and custody of the children, there can be no doubt that the
entire proceedings before the court a
quo
were a nullity ab
initio.
The appropriate remedy would therefore, have been to strike out the
entire chamber application without any further ado.
The
issue concerning the custody of the three minor children however
calls for further comment. This is in view of the supremacy of the
doctrine of the best interests of minor children, vis
a vis
the incompetent procedure adopted by the respondent in seeking
custody of her children.
CUSTODY
OF THE THREE MINOR CHILDREN
The
respondent's claim was for a 'provisional' spoliation order for
the repossession of custody of her 3 minor children and property
allegedly forcibly and unlawfully taken away from her by the
appellant against her will.
The
appellant questioned the jurisdiction of the court a
quo
to entertain the issue of custody given that section 5 of the
Guardianship of Minors Act [Chapter
5:08]
('the Act') specifically confers jurisdiction on the Children's
Court in matters of this nature.
It
is however pertinent to note that, although the Children's Court is
conferred with the jurisdiction to determine the question of custody
upon separation of a child's parents, the High Court as the upper
guardian of all minors
has overall inherent jurisdiction at every stage during the child's
minority. This is because the section does not expressly oust the
jurisdiction of the High Court. Ordinarily it retains its inherent
jurisdiction to hear and determine matters of this nature at its
discretion.
Where
however the proceedings before the court are a nullity, the court is
stripped of its jurisdiction over the matter. It cannot therefore use
the supremacy of the best interests of the children to found
jurisdiction to
grant spoliatory relief as happened in this case.
The
court notes in passing that the application makes no distinction
between the recovery of custody of the minor children and
repossession of property. It treats children as if they were pieces
of property that can be the subject of a spoliation order.
Biblical
Solomonic wisdom, however, instructs that a child cannot be treated
as common property in a tussle for custody between adults. For that
reason, the law maker has laid out elaborate laws and procedures for
the regulation of issues to do with custody and guardianship of minor
children.
The
applicable law regulating the custody of children where their parents
begin to live apart is to be found under section 5 of the
Guardianship of Minors Act. There was thus no call for the respondent
to reach beyond and outside this law, to found a claim for custody of
her children.
The
section provides as follows:
“5
Special provisions relating to custody of minors
(1)
Where
either of the parents of a minor leaves the other and such parents
commence to live apart, the mother of that minor shall have the sole
custody of that minor until an order regulating the custody of that
minor is made under section four
or
this section or by
a superior court such as is referred to in subparagraph (ii) of
paragraph (a)
of
subsection (7).
(2)
Where —
(a)
the
mother of a minor has the sole custody of that minor in terms of
subsection (1); and
(b)
the
father or some other person removes the minor from the custody of the
mother or otherwise denies the mother the custody of that minor; the
mother may apply to a Children's Court for an order declaring that
she has the sole custody of that minor in terms of subsection (1)
and, upon such application, the Children's Court may make an order
declaring that the mother has the sole custody of that minor and, if
necessary, directing the father or, as the case may be, the other
person to return that minor to the custody of the mother.”
(Our
emphasis)
Thus
the section automatically confers custody of the minor children on
the respondent by operation of law when she began to live apart from
the appellant. There is therefore no truth in the respondent's
averment in para 10.3 of her founding affidavit that she had no
alternative remedy. Section 5 of the Act clearly provides a less
onerous remedy heavily weighted in her favour. It was therefore
remiss and the height of folly for counsel for the respondent to rely
on the inappropriate law of 'provisional' spoliation to claim
custody of the minor children.
One
difficulty with the respondent's claim for custody under
spoliation, misguided though it was, is that in this Court she
recanted and retracted her earlier accusation that the appellant had
unlawfully abducted the three minor children from her. By the same
token she withdrew her allegation that the appellant had approached
the court with dirty hands.
These
concessions mean that the appellant did not unlawfully dispossess the
respondent of the custody of the three minor children.
The
retraction just referred to is consistent with the appellant's
defence that he did not unlawfully dispossess the respondent of the
custody of the children. The concessions therefore absolve the
appellant of any wrong doing regarding the manner in which he assumed
custody of the minor children and disputed property. The allegation
that the appellant abused his position as Vice President is therefore
misplaced and without foundation.
The
requirements for a valid spoliation claim are well known as spelt out
in Botha
and Another v Barret
where the learned Chief Justice GUBBAY had occasion to remark that:
“It
is clear law that in order to obtain a spoliation order, two
allegations must be made and proved. These are:
(a)
That the appellant was in peaceful and undisturbed possession of the
property; and
(b)
That respondent deprived him of the possession forcibly or wrongfully
against his consent.”
The
respondent's claim under spoliation falters at the very first test
in that the remedy seeks to protect possession of property in the
main and not human beings.
Secondly,
unlawful dispossession being a necessary ingredient of the delictual
claim of spoliation, the admitted absence of wrongful dispossession
left the respondent with no leg to stand on.
Despite
the ineptitude of her legal practitioners in choosing to rely on an
inappropriate procedure, the law however remains on her side as it
automatically confers the custody of the minor children on her
without any further ado. As the law stands, upon separation from the
appellant, the respondent automatically acquires custody of her minor
children by operation of law until the courts determine otherwise.
The realisation and enjoyment of that right was however negated by
the respondent's lawyers who adopted a completely wrong procedure
rendering the proceedings a nullity
ab initio.
Both
section 5 of the Act as read with section 81(2) of the Constitution
provide for the supremacy of the best interests of the minor child.
As we have already seen, the Act provides that where the parents of a
minor child begin to live apart, the custody of the minor child shall
be with the mother. What this means is that the law presumes that at
the time of separation it is in the best interest of the child that
its custody be with the mother until the contrary is proved in a
competent court.
That
is however a rebuttable presumption.
The
supremacy of the best interest of a child means that the appellant
was within his rights in challenging the suitability of the
respondent as a custodian parent of the minor children. He challenged
the respondent's suitability as a custodian parent on two main
grounds.
(a)
Firstly, that she was a drug addict who practised black magic; and
(b)
secondly, that she was a psychiatric patient.
The
appellant was entitled to raise these concerns which however needed
to be probed before an appropriate order based on the merits and
direct empirical evidence, could be made.
The
difficulty with the respondent's case in the court a
quo
was that she did not claim custody of her children under section 5 of
the Act. She instead, for no good reason and at the instance of her
lawyers, claimed custody of her children under the non-existent and
inapplicable law of 'provisional' spoliation.
As
already stated, the learned judge in the court a
quo,
presumably having realised that the respondent's claim was
incompetent and a nullity at law, improperly granted her a final
interdict which she had not asked for. The order cannot stand.
However,
now that the matter is pending in the court a
quo
under section 4 of the Act, the issue of the custody of the three
minor children is best left to that court for a substantive
determination on the merits after hearing evidence.
DISPOSITION
In
granting the respondent a final interdict which she had not asked for
in respect of her claims, the learned judge a
quo
fell into grave error and misdirected himself.
(i)
Firstly, because he had neither the jurisdiction nor the discretion
to award the respondent relief that she had not asked for.
A
judicial officer who acts without jurisdiction acts without authority
and to that extent illegally.
The
court was at fault in that it determined a matter that was not before
it and without hearing argument on the question of whether or not to
grant a final interdict. The matter that was before it was whether or
not to grant the 'provisional' spoliation order. The question of
the final interdict was supposed to be argued and determined on the
return day which however, never saw the light of day.
Once
the court a
quo realised
that
the respondent's claim was fatally defective, it was duty bound to
strike it off the roll. In determining the issue mero
motu
without hearing argument from both parties the court a
quo
was in fundamental breach of the audi
alteram partem rule which
forms the backbone of our adversarial legal system.
(ii)
Secondly, at law a 'provisional' spoliation order is incompetent
as relief for the acquisition of a final interdict. This is because a
final interdict cannot be founded on a 'provisional' spoliation
order which is in itself a nullity at law. You cannot put something
on nothing, as it will collapse. (See Mcfoy
v United Africa Co. Ltd)
(iii)
Finally,
it
was incompetent to seek custody of minor children through spoliation
proceedings to the exclusion of clear statutory provisions under
section 5 of the Act.
On
the other hand, it appears that the learned judge a
quo
was overwhelmed by the status of the appellant as Vice President of
the country and the intensity of the conflict. His vision was
apparently clouded by the dust of the conflict, prompting him to wade
into its murky waters in aid of the respondent, and granting her
relief that she had not asked for.
Such
conduct was injudicious and an affront to the time honoured tenets of
justice, fairness and equality before the courts.
In
the absence of any evidence of abuse of office, the appellant ought
to have been treated like any other citizen before the court a
quo.
It
is plain from the above summation of the facts and analysis of the
law that, although the respondent may have had a meritorious case,
she unfortunately did not get the benefit of sound legal advice in
order to assert her rights. Regrettably this is the sort of case
where one cannot escape the consequences of the conduct of his/her
legal practitioner.
As
the respondent's claim was incompetent and a nullity at law the
court a
quo ought
to have found that the application was not properly before it and
struck the matter off the roll.
COSTS
It
is trite that costs follow the results.
In
this case there were 3 substantive issues for determination being:
1.
Access to the matrimonial home.
2.
Possession of the disputed properties.
3.
Custody of the 3 minor children.
The
appellant has succeeded on two of the issues that arose for
determination in this appeal whilst the respondent has succeeded on
the inconsequential procedural issue of urgency.
The
respondent's conduct in presenting an incompetent claim and her
unsubstantiated attack on the appellant's character could have
justified an order for punitive costs against her. However, in light
of the fact that she did not get appropriate legal advice and
representation from her lawyers, the court takes the view that an
order of costs on the higher scale would be unduly harsh.
It
is accordingly ordered as follows:
1.
The appeal succeeds in part, with costs.
2.
The appeal against the finding of the court a
quo
on urgency be and is hereby dismissed.
3.
Subject to paragraph 2 above, the judgment of the court a
quo
is set aside and substituted with the following:
“The
matter be and is hereby struck off the roll with costs.”
Manase
and Manase, the
appellant's legal practitioners
Mtetwa
and Nyambirai, the
respondent's legal practitioners
