CHITAKUNYE
J. The applicant is married to Nathan Simango in terms of the Marriages Act, [Cap 5:11]. The marriage still subsists.
Their marriage was blessed with one child. The respondent is a blood brother to
Nathan Simango.
It
is common cause that the applicant and Nathan moved to the United States of America (hereinafter referred
to as USA)
about 9 years ago. Both were apparently employed. Nathan lost his employment
and in the year 2008 he fell ill. He was alleged to be suffering from Alzheimer.
As a result he sometimes had certain limitations in understanding and was no
longer in full control of his mental faculties. It appeared not disputed that
as a result of the illness he would at times wander away from home. The
applicant did not deny that due to the illness she took Nathan to his other brother,
Simon Simango, who is also in the United States of America.
Thereafter
in February 2010 applicant came with Nathan to Zimbabwe. On her return to the United States of America
she left Nathan behind, in circumstances the two parties are not agreed. It is
nevertheless clear that Nathan was left in the custody of the respondent, Paul
Simango. It also did not appear disputed that soon after arriving from the USA in
February 2010, Nathan was taken to hospital by the respondent. Due to the state
of his illness Nathan was admitted into hospital. Since then it is Paul who has
been responsible for Nathan's medical care.
On
18 November 2010, applicant returned to Zimbabwe
from the USA.
Since then, she said, she had been trying to take custody of her husband Nathan
to no avail.
The
respondent in taking care of Nathan incurred financial expenses. His efforts to
get assistance from rentals from Nathan's house here in Zimbabwe, which is rented out by
applicant's sister met some resistance.
Though
the house is said to be rented out at a sum of 1000 United
States dollars per month, he was only given 300 United States
dollars by applicant's sister after a struggle. He had to seek legal assistance
to wretch out another 3 x 300 United
States dollars payments after that. So for
about 8 months only 1200 United
States dollars was given to Paul to assist
in Nathan's medical needs out of a total of $8000 rentals received by
applicant's sister.
Nathan
as the registered owner of the property no longer had the mental capacity to
administer his property so as to get funds for his own medical needs. His
mental condition even as he left the United
States of America for Zimbabwe was documented. Here in Zimbabwe
it is not disputed that he has not recovered his mental faculties to be able to
administer his property.
As
a result of these difficulties Paul Simango applied to this court for
appointment as Curator bonis. That
application was granted on 8 October 2010.
A
curator bonis is appointed by the
court to assist someone who has full capacity to act but who, for some reason
or another, such as physical or mental disability, is unable to administer his
property. The rights and obligations of curators
are mutatis mutandis, the same as
those of guardians except, that they only relate to the property of the person
under curator ship and not to his
person. A curator bonis is expected
to take custody and control of the property of the person under curatorship.
In
a bid to take control of the rented house, as curator bonis, the respondent sought to evict tenants in the house
as they were not accounting to him or to Nathan for monthly rentals, which
rentals he badly needed to assist in attending to Nathan's medical needs.
The
application for the eviction of applicant's sister Eleanor Mudede and all those
claiming occupation through her was set down for the 12th November
2010 in the magistrates' court, Harare.
It is then that apparently applicant arrived on 18 November 2010 and sought to
reassert her rights over Nathan, as her husband.
In
this urgent chamber application the applicant sought an interim relief that-
1.
The respondent releases forthwith
Nathan Simango into the Custody of the applicant together with Nathan Simango's
personal belongings, identity, travel documents and return tickets.
2.
that in the event of the respondent
failing to fulfill (i) that the Zimbabwe Republic Police be granted authority
to take Nathan Simango from the respondent's custody into the custody of the
applicant.
3. The costs be costs in the cause.
The
application was opposed by the respondent. The respondent's opposition was
premised on the fact that Nathan Simango is still unwell, not able to speak and
undergoing therapy. He felt that applicant should let Nathan recover.
He
also alluded to the fact that he fears for Nathan Simango's health as applicant
does not appear to have made any arrangements for her to adequately provide for
Nathan.
In
paragraph 36 of his opposing affidavit, respondent succinctly put it thus:-
“My
request is that let the doctors finish the therapy and that Nathan recovers to
such an extent that he can make decisions for himself. Applicant is not saying
that she has returned to settle in Zimbabwe permanently. I believe it
is in the best interest of Nathan that applicant and I do not fight but try to
sit down and find the best way to assist each other so that Nathan recovers.
Applicant can see Nathan anytime that she wants. But Nathan has to continue
going for therapy and undergoing treatment. He needs a nurse.”
The
issue one may pause is whether Nathan should be released into the custody of
his wife, who has only come on a temporal visit and has to rush back to the USA to
attend to the couple's child. In determining this issue it is important to realize
that Nathan's medical state at the time he was brought by applicant in February
2010 as described by respondent has not been challenged or rebutted in any way.
The medical reports filed of record by both parties and also at my instance
clearly show that Nathan is still in need of proper medical attention.
Whilst
a marriage institution has to be preserved, one cannot lose sight of what is in
the best interest of a seriously ill spouse. Applicant did not seriously deny
that at the time she brought Nathan; he weighed about 30 kilograms and was
seriously ill such that he was immediately admitted into hospital. At the time
she left he was still in hospital. She also did not deny that as a result of
respondent's care and dedication to Nathan's healthy needs, Nathan has now gained
weight to about 67kgs.
The
various medical expenses incurred by respondent were not denied by applicant.
She also did not deny that respondent faced numerous hurdles in trying to
access money for rentals from their matrimonial home. As a result of applicant's
sister's refusal with the rentals, respondent used his own resources to have
Nathan receive medical treatment. To crown it all, applicant did not deny that
Nathan's state of ill health was such that he could not administer his estate
on his own. Clearly therefore the appointment of someone to administer his
estate cannot be faltered.
On
the applicant's part I did not hear her to say that since leaving Nathan behind
in February 2010, she ever sent any money for his medication. All she seemed to
say was that her efforts to talk to Nathan over the phone were being blocked.
But, one would ask: how could she even demand such when Nathan was not able to
speak? Throughout her application and even from submissions made in chambers I
did not hear applicant to say she had in any way made medical treatment for
Nathan a priority in the use of rentals from their matrimonial house. If
anything, she did not deny that only $1200(USD) from at least $8000(USD) realized
from rentals went towards Nathan's medical bills, yet Paul expended over $9000(USD)
of his own money in that regard. That $1200(USD) which went towards Nathan's
treatment was not given to Paul voluntarily; he had to fight for it through
legal steps.
It
may also be noted that applicant was not clear on how she hoped to take care of
Nathan upon assuming custody. She seemed unwilling to take court into her
confidence regarding this issue.
It
is my view that respondent in opposing the application raised valid concerns
about applicant's ability to provide proper medical care for Nathan. The life
that Nathan is fighting for is only lived once. As a concerned wife applicant
should surely indicate what measures she has put in place. For instance, she
could not be forthcoming on how long she intended to remain in Zimbabwe in
light of the fact that she said their minor child she had left in the United
States also needed her. Her assertion that she would make alternative
arrangements was not convincing at all. Her suggestion that her ability to take
care of Nathan here and in the United
States of America should not be questioned
is not borne out by the medical reports and bills she tendered. Those reports
show that in the USA doctors
were merely examining Nathan and no treatment had commenced for all that time
Nathan was unwell in the USA.
The bills show that applicant was having difficulties in paying for the
medicals. For instance, to show that she took Nathan for medical attention she
referred to annexure D1 and D2 to her founding affidavit. Annexure D1 shows
that Nathan was attended to by a doctor on 29 May 2009 and a bill of $72.50(USD)
was raised. As at 30 June 2010, applicant had not yet paid that bill. Annexure
D2 confirms that it was only on 13 July 2010 that applicant paid that debt
incurred on 29 May 2009. If it took her over a year to pay a medical bill of 72.50
United States
dollars only, surely respondent is justified to be concerned about applicant's
ability to meet Nathan's medical costs. It may be as stated by Paul that she
had no medical insurance. It is the lack of medical insurance that she had
herself used as an excuse for not having attended to Nathan when she brought
him to Zimbabwe
in February 2010.
In
this case though the application was brought as being for the release of Nathan
into the custody of applicant, clearly the applicant's is seeking to be granted
custody of Nathan and not just his release.
Normally
issues of custody pertain to children/minors. The person she seeks to be
granted custody of is an adult. The question may be asked:
Does a marriage give one spouse custodian
rights over the other?
If
the application is restricted to one purely for the release of Nathan, I did
not hear applicant to allege that Nathan is being held against his will or
wishes such that a court order is necessary for his release. An order for his
release is in my view not appropriate in the circumstances.
It
may also be noted that the release of Nathan to applicant would not affect the
duties and responsibilities of a Curator
bonis bestowed on the respondent till
such a time that the order is discharged or is set aside. Having Nathan
released into her custody would not automatically thrust her as the administrator
of Nathan's estate.
However
as a wife, applicant is entitled to access to her husband whilst he receives
medical treatment. If she really cares for Nathan, she should support respondent
in every way possible to ensure that Nathan receives the best possible medical
attention.
As
respondent said, as soon as Nathan has recovered she will have him all to
herself.
The
contention that respondent's actions would amount to destroying a marriage was
clearly misplaced. Applicant could not point at any action by respondent that
was adverse to Nathan's medical needs or inimical to their marriage. On the
other hand just what has happened to Nathan from the time she left him with respondent
is evidence on its own that respondent is not there to destroy a marriage but
to ensure that Nathan has the best medical care for his recovery so that the
two can continue with their marriage.
As
stated by Dr. Nhiwatiwa in his report after examining Nathan at my request-
“Nathan is ill,
he barely says a word at times he smiles and at times he laughs out loud. There
also appears to be squabbles between Nathan's family and his wife. This is most
unfortunate as it adds more pressure on Nathan. All the people involved are
important to him so it appears as if he is being pulled in all directions.
An EEG was
ordered by a Doctor who saw him initially and shows he may have Temporal lobe
epilepsy. His clinical picture today appears more serious than temporal lobe epilepsy.
He is not communicating...”
In his
conclusion Dr. Nhiwatiwa said that:-
“Nathan is
suffering from an organic mental disorder. Its nature is to be determined after
further investigation. I suggest that he sees a neurologist first. Depending on
what they find, further admission to the Annexe for further evaluation maybe
required.
When it is said
and done in the long term Nathan would benefit from going to the countries
where there are better facilities….”
I
am of the view that rather than continue with the squabbles, parties should do
as suggested by the doctor, to be united. The respondent also said that he
would prefer to sit down with applicant and assist each other to ensure that
Nathan gets adequate medical attention.
At
the end of the submissions and after perusing the three medical reports filed of
record, I am of the view that if both parties are seriously concerned about Nathan's
health, they should corporate and provide him with a conducive and not
combative environment for his recovery.
The
best interest of Nathan will not be served by releasing him to a person who is
clearly not financially and materially able to provide him with basic medical
needs, and is in any case, likely to leave for the USA at any time.
Accordingly
only an interim order for access will be granted as follows:-
Pending the finalization of the
matter:-
(1)
The applicant is hereby granted rights of access to
Nathan Simango the said Nathan Simango shall continue to receive medical
attention under the care of the respondent.
(2)
the respondent is hereby directed and ordered to ensure
that applicant enjoys unhindered access rights as stipulated in paragraph 1
above;
(3)
Costs shall be costs in the cause.
Mtetwa & Nyambirai, applicant's legal practitioners
TK Hove and Partners, respondent's legal practitioners.
