IN
CHAMBERS
MATHONSI
JA: This
is an application for condonation of the late noting of an appeal and
the extension of time within which to appeal against a judgement of
the High Court handed down on 1 October 2020.
The
applicant's initial appeal filed timeously was struck off the roll
on 1 April 2021 for the reason that the notice of appeal was fatally
defective.
FACTUAL
BACKGROUND
The
applicant is a citizen of the United States of America (USA) even
though he was born in Russia. The respondent is a Zimbabwean
citizen. The two met in 2011 in Harare Zimbabwe and commenced having
a relationship which is said to have been upgraded to a customary
marriage by reason that the applicant paid the bride price for the
respondent. They never registered a legal marriage.
The
parties' association was blessed with a boy child called Orrin who
was born on 23 July 2013.
During
the period extending from 2015 to 2019, the applicant secured
employment in Russia and as such became resident in that country. In
2016 the respondent and the boy child Orrin followed the applicant to
Russia where the family took up residence.
It
was during the period of their temporary residence in Russia that the
couple decided to have a second child. Owing to some health
challenges, the respondent could no longer carry the pregnancy. They
decided to have the child through surrogacy and found a surrogate
mother with whom a surrogacy agreement was entered into. It was
signed by the applicant, the respondent and the surrogate mother on 2
March 2018.
The
surrogacy agreement stated in pertinent part:
“We
undertake to assume the equal rights and obligations of parents with
respect to the children, born by 'surrogate mother' after embryo
transfer to the uterine cavity of 'surrogate mother', in terms of
their upbringing, as defined by the Russian legislation on family and
marriage.”
In
pursuance of that agreement, the surrogate mother carried the
pregnancy for the parties and gave birth to the girl child,
Elizabeth, now at the centre of the dispute, on 15 November 2018.
Unfortunately the parties' relationship hit turbulence and a short
while after the birth of the child they commenced living apart.
Although
the surrogate mother had given her consent for them to register the
child as their own as genetic parents, the Khamovhichesky Department
of the Civil Registry of Moscow refused their application to register
the child as they were not married.
Acting
together, they instituted a law suit against the Registry Office for
their recognition as the parents of Elizabeth.
On
27 September 2019, the Meshchansky District Court of Moscow allowed
the state registration of the child and for the respondent to be
registered as its mother. The applicant was not so lucky. His
application for registration as the father was rejected because, by
then, he had had his employment in Russia terminated and had
relocated to the United States of America.
In
doing so, the applicant took the boy child, Orrin, with him.
Although
there is no convergence between the parties as to what their
intentions were, the applicant says he relocated to United States of
America with the respondent's consent, while the respondent's
position is that the applicant abducted Orrin and deserted her and
Elizabeth.
It
is however not in dispute is that the respondent and Elizabeth were
left stranded in Russia. They had been in that country on the
applicant's expired VISA.
The
respondent and Elizabeth ended up living at the Zimbabwean embassy
while processing documents to move to Zimbabwe. In due course, the
duo found their way to Zimbabwe in November 2019 where they have
remained to this date.
The
applicant was aggrieved.
He
brought an application to the High Court in terms of the Hague
Convention on the Civil Aspects of International Child Abduction (the
Hague Convention). The Hague Convention has been domesticated in
Zimbabwe and bears the force of law by virtue of s3 of the Child
Abduction Act [Chapter
5:05].
The
basis of the applicant's case was that the removal of the child
from Russia and its retention in Zimbabwe are unlawful.
The
applicant sought a declaratory order to that effect. Consequent to
that, the applicant sought an order that the child be removed from
Zimbabwe and sent to Boston in the United States of America or to
Russia for a determination of the parties' parental rights in those
jurisdictions. According to the applicant, Russia was the child's
habitual residence. He asserted that the child had been in that
country awaiting the processing of documentation which would have
enabled it to migrate to the United States of America with the
respondent in terms of their agreement.
The
respondent opposed the application.
According
to her, the parties had agreed to return to Zimbabwe and settle here.
She stated that an email she had written to the applicant's lawyer
insinuating the existence of an agreement with the applicant for
their relocation to the United States of America had been written
under duress. The respondent asserted full parental rights over the
child to the exclusion of the applicant as her rights had been
settled by the court in Russia. According to her, the child was
lawfully retained as a Zimbabwean.
The
High Court dealt with a number of approaches in seeking to determine
the child's habitual residence for purposes of the Hague
Convention.
It
concluded that, while the issue of the intention of the parties was
key in determining habitual residence, the child's parents never
formed an intention to settle in Russia. They travelled there for
work only and for that reason Russia was not the child's habitual
residence. It could not be returned to that country.
By
the same token, the High Court found that it could not order that the
child be returned to the United States of America given that doing so
would not be in line with the Hague Convention's purpose of
restoring the status
quo ante.
Finding
the Hague Convention inapplicable, the High Court dismissed the
application.
The
applicant was dissatisfied.
On
9 October 2020, well within the time allowed by the rules of court,
the applicant filed an appeal to this Court. The appeal was
defective in that the relief sought therein was incompetent. At the
hearing, the appeal suffered the fate of all defective appeals. It
was struck off the roll.
THE
APPLICATION
The
appeal having been struck off the roll, the applicant has filed the
present application for condonation of the late filing of an appeal
and the extension of time within which to appeal. The application
before me was filed on 9 April 2021 just 8 days after the initial
appeal was struck off. Clearly there was no material delay in
seeking condonation.
The
applicant's explanation for failure to comply with the rules is
that right up to the date of the hearing of the appeal, he was
labouring under the mistaken belief that he had filed a valid appeal.
The explanation is actually given by the applicant's legal
practitioner who takes ownership of the defective prayer in the
initial appeal.
On
the prospects of success on appeal, the point is made on behalf of
the applicant that the High Court was wrong in dismissing the
application on the basis that shared parental intent could not give
rise to an application under the Hague Convention. The applicant
would also want to contest the High Court's finding that
Russia was not the child's habitual residence.
The
respondent opposes the application.
In
doing so, the respondent asserts that the intended appeal enjoys no
prospects of success because the applicant had sought the return of
the child to Russia. That country could not possibly be said to be
the child's habitual residence in the circumstances of the case.
Accordingly the High Court's decision cannot be assailed.
In
the respondent's view the applicant ought to have appealed against
the judgment of the court of Moscow which gave her sole parental
rights over the child. She denies unlawfully retaining the child in
Zimbabwe.
PRELIMINARY
OBJECTIONS
Ms
Musuka
for the respondent raised two preliminary objections. Firstly, she
submitted that the prayer in the heads of argument filed on behalf of
the applicant was defective. It sought the dismissal of the appeal
when what is before the court is an application for condonation. In
counsel's view, such inattention has permeated the manner in which
the applicant has dealt with this matter.
Mr
Zhuwarara
for the applicant was down on his knees, so to speak, when he
apologised profusely for that typing error. He promptly applied for
the deletion of the prayer from the heads of argument. While such
clerical oversights should not be done in papers filed by senior
counsel for the benefit of a superior court, they cannot form the
basis of a dismissal of an application.
(ii)
Secondly, Ms Musuka
objected to the filing of the applicant's answering affidavit out
of time. In terms of r43(5) the applicant should file his or her
answering affidavit within 3 days of being served with the
respondent's opposing affidavits. In this case the answering
affidavit was filed on the 4th
day.
In
my view, no prejudice was suffered by the respondent by that marginal
failure to meet the time lines set by the rules. This is more so
given that the offending affidavit was filed on 22 April 2021 several
weeks before the application was set down.
I
restate that such small indiscretions should not be allowed to stand
in the way of the attainment of justice and the right of litigants to
access the court.
I
condoned the late filing of the answering affidavit.
THE
LAW
What
the court has regards to in an application for condonation is now
settled. The court has a discretion, which is exercised judicially,
in considering an application of this nature. Relevant factors in
this regard are the degree of non-compliance with the rules of court,
the explanation for the failure to comply, the prospects of success
on appeal, the importance of the case, the interest of the respondent
in the finality of the judgment, the convenience to the court and the
avoidance of unnecessary delays in the administration of justice. See
Maheya
v Independent African Church
2007 (2) ZLR 319 (S) at 323B-C.
It
is also settled that these factors have to be considered in
conjunction with one another as they tend to be complimentary.
While
it is true that consideration of the factors generally boils down to
having regard to the explanation given by the applicant for
condonation for delay and the prospects of success on appeal, the
lack of a satisfactory explanation for the delay may be complimented
by good prospects of success on appeal. See Khumalo
v Mandeya and Another
2008
(2) ZLR 203 (S).
APPLICATION
TO THE FACTS
The
judgment sought to be appealed against was handed down on 1 October
2020. The applicant's putative appeal under case number SC421/20
was struck off the roll on 1 April 2021. There was no delay in
filing this application after the striking off of the appeal.
The
applicant's failure to comply has been explained as the oversight
of his legal practitioner who drafted a defective notice of appeal.
I
accept that this Court has stated in the past that there is a limit
beyond which a litigant cannot escape the consequences of his or her
legal practitioner's dilatoriness or lack of diligence. See
Musemburi
and Another v Tshuma
2013 (1) ZLR 526 (S) at 529E-H; 530A-B.
I
take the view, however, that this is not a case in which the legal
practitioner's lack of diligence should be visited upon the
applicant. This is so mainly for two reasons.
(i)
The first one is that the infraction by the legal practitioner only
related to the crafting of the prayer in the notice of appeal. It is
a fault that cannot be said to be gross.
(ii)
The second is that I hold the view that the issues raised by the
proposed appeal are arguable. They deserve the attention of the full
bench of the appeal court, if for no other reason but that the
Supreme Court has not authoritatively pronounced itself on them.
I
can only refer to the manner in which the court a
quo
dealt with the issue of the agreement of the parties in coming to a
conclusion that the Hague Convention's application was not
triggered. For a matter to fall under the Hague Convention its
article 3 must be satisfied. It provides:
“The
removal or the retention of a child is to be considered wrongful
where -
(a)
It is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the law
of the state in which the child was habitually resident immediately
before the removal or retention;
(b)
At the time of removal or retention, those rights were actually
exercised, either jointly or alone, or would have been exercised but
for the removal or retention.
The
right of custody mentioned in subparagraph (a) above may arise in
particular by operation of law or by reason of a judicial or
administrative decision, or
by reason of an agreement having legal effect under the law of that
State.”
(The underlining is for emphasis).
In
Peacock
v Steyn
2010 (1) ZLR 254 (H) the court found that the existence of a custody
agreement between the parents of minor children who are not married
regulating their rights of shared custody, triggered the application
of the Hague Convention. This is by virtue of article 3.
In
the present case, the surrogacy agreement I have referred to above
provided some kind of shared custody between the parties.
That
therefore presents the applicant with an arguable case on appeal.
Apart
from that, Mr Zhuwarara
drew attention to an email written by the respondent on 11 November
2019 while she was still in Russia. He submitted that the letter
affirms the existence of an agreement between the parties to move the
child to the United States of America.
The
email was addressed to the respondent's legal practitioner
instructing him to relay it to the applicant's legal practitioner
for the attention of the applicant. It reads:
“Please
be advised that Elizabeth and I are finally ready to travel and are
now able to make plans for next steps. As you have previously
indicated you had gone ahead to America and we were to follow so that
the children would be together and neither one of us would be
deprived of his rights to both children. We will of course need to
travel to Zimbabwe first in order to get visas and after that will
proceed to America. Please may you send confirmation that this is
indeed still the plan as well as confirmation that you will be buying
tickets so that we are all reunited. I look forward to receiving your
response and finally ending the current separation from Orrin.”
I
am aware that there was a suggestion by Ms Musuka
that the email was written under duress, the particulars of which
were not clearly articulated.
That
is however immaterial for our present purposes. What is important is
that the statement by the respondent suggests that an agreement for
shared custody may have existed.
If
that is the case, the applicant is entitled to argue on appeal that
the retention of the child in Zimbabwe in breach of such agreement
brings the case under the ambit of the Hague Convention.
I
am not sitting to determine the appeal but merely to consider whether
it is arguable.
I
think it is.
A
case has been made for the grant of the indulgence of condonation.
Regarding
the issue of costs, Mr Zhuwarara
for the applicant tendered to pay the respondent's costs regardless
of the outcome of the application. This he did upon a realisation
that the application was necessitated by the applicant's
blameworthiness.
An
award of costs will be made by consent.
In
the result, it be and is hereby ordered as follows:
1.
The application for condonation for non-compliance with r38(1)(a) of
the Supreme Court Rules, 2018 be and is hereby granted.
2.
The application for extension of time within which to file and serve
a notice of appeal against the judgment of the High Court handed down
on 1 October 2020 as HH620-20 be and is hereby granted.
3.
The applicant shall file his notice of appeal within 7 days from the
date of this judgment.
4.
By consent, the applicant shall bear the costs of this application.
Mambosasa
Legal Practitioners,
applicant's legal practitioners
Karuwa
and Associates,
respondent's legal practitioners
