The applicant is seeking an order that she be appointed the legal guardian of Tinashe Esther Chalimba, born on 17 August 1996 and Anesu Esther Chalimba, born on 29 July 1999, plus costs of suit.In her founding affidavit, the applicant states that she cohabited with the respondent from 1995. As ...
The applicant is seeking an order that she be appointed the legal guardian of Tinashe Esther Chalimba, born on 17 August 1996 and Anesu Esther Chalimba, born on 29 July 1999, plus costs of suit.
In her founding affidavit, the applicant states that she cohabited with the respondent from 1995. As a result of such cohabitation, she gave birth to Tinashe Constance Chalimba on 17 August 1996 and Anesu Esther Chalimba on 29 July 1999. Due to the violent nature of the respondent the two separated. The applicant obtained an order for the custody of the minor children in the Magistrates Court. She also sought a binding over order against the respondent in the Magistrates Court. In addition, she filed two applications for maintenance for the minor children.
In 2003, the applicant secured employment in New Zealand. With her mother having passed away she had no alternative but to leave the children with the respondent. She intended to collect the children later.
In 2005, she informed the respondent on the need for the children to join her but he refused.
Later, she learnt that the respondent had taken the children to South Africa. She subsequently visited them and she was allowed limited access to them.
In 2007, she established that the children were back in Zimbabwe and attending school in Rusape where she visited them. She concludes by stating that since she was never married to the respondent she is the legal guardian of the children. She then prays for an order in terms of the draft.
In his opposing affidavit, the respondent states that the South African High Court ruled that the children should stay with him, with the applicant having access. He contends that the applicant applied for custody of the children in the local courts but she did not prosecute the matter to finality. He also contends that he never agreed that the children would return to the applicant. He was never told that the applicant intended to leave the country. There was no communication from the applicant between January 2003 and June 2005. The applicant is said to have filed an application for custody of the children in the South African High Court and the matter had not yet been determined at the time of filing of the opposing affidavit.
Counsel for the applicant submitted that it is trite that an unregistered customary law union does not bestow guardianship on the father. He prayed for the order sought despite the issue taken up by counsel for the respondent regarding the propriety of such an order. It was further his submission that nothing turns on the criticism aimed at the draft order as it seeks to confirm the legal position that the applicant is the legal guardian of the children. He also urged the court to dispose of the matter notwithstanding that there is pending litigation between the parties in the South African courts.
On the other hand, counsel for the respondent submitted that the present proceedings are substantially similar to the matter that was pending before the South African courts. He thus urged this court to exercise its discretion by declining to determine the present matter as the applicant has not finalized the matter that is before the South African courts. It was his submission, that, as a matter of public policy, a litigant should not hop from one court to the other without good cause. In truth and substance, the present application is said to be exactly the same as the one pending before the South African courts, so counsel for the respondent further argued.
On the merits, counsel for the respondent submitted that it is incompetent to grant the order sought. This is because the law recognizes two types of orders. There is what is termed a constitutive order which confers rights to one party and imposes obligations on the other party. The other order is declaratory as it does not confer rights but states what the position of the law is regarding a particular issue.
Counsel for the respondent further submitted that a litigant's case stands or falls on its founding affidavit. Thus, the founding affidavit sets out the applicant's cause of action. If it is accepted that the father of children born out of wedlock has no rights regarding those children then that can only be the subject of a declaratory order as opposed to a constitutive one.
Counsel for the respondent further pointed out paragraph 31 of the applicant's founding affidavit in which she seeks to be appointed guardian of her children. If that is the case she does not require such an appointment as she is the natural guardian by operation of law.
Counsel for the respondent also submitted that the court must endeavor to look at the substance of the application as opposed to its form. In his view the substance of the present application is captured in paragraphs 13 to 28 of the founding affidavit. In essence, the applicant is said to be seeking custody under the guise of an application for an order for guardianship. This, according to counsel for the respondent, is evidenced by what is contained in the founding affidavit....,.
The defense of lis alibi pendens was raised for the first time in the respondent's heads of argument as it had not been raised as a point in limine.
The authorities cited in the respondent's heads of argument are quite clear on the requirements for such a defence. As was stated by McNALLY JA in the case of Mhungu v Mtindi 1986 (2) ZLR 171 (S)…,:
“The defense raised by this allegation is the defence of lis pendens, sometimes known as lis alibi pendens. HERBSTEIN and Van WINSEN in the Civil Practice of the Superior Courts in South Africa 3rd ed. at pp269 et seq say, at pp269-270:
'If an action is already pending between the parties and the plaintiff therein brings another action against the same defendant on the same cause of action and in respect of the same subject matter, whether in the same or different court, it is open to such defendant to take the objection of lis pendens, that is, another action respecting the identical subject matter has already been instituted, whereupon the court, in its discretion, may stay the second action pending the decision in the first action'.”
As stated in the above-cited case, the court has discretion to stay the second matter pending a decision on the first one.
The application pending before the South African court is for an order of custody of the minor children. In the present matter, the applicant is seeking to be appointed guardian of her own children.
Counsel for the respondent urged this court to consider the substance of the present application as opposed to its form and make a finding that it is essentially a custody claim. Once I make such a finding, I should then use my discretion to decline to determine the matter on the merits pending the decision on the application filed in South Africa.
I do not think that for purposes of determining whether a matter qualifies as lis alibi pendens one is required to look at the substance of each application as opposed to its form. I think it should suffice to consider whether the causes of action are the same.
In the two matters, the causes of action are different, and, as a result, the defense of lis alibi pendens does not apply.
