Fungai Bryan Katsande v Kenny Grant

### Preamble
1
HH 380-2012
HC 1674/12
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FUNGAI BRYAN KATSANDE

versus

KENNY GRANT

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 1 AUGUST & 19 SEPTEMBER, 2012

F. M. Katsande for the Plaintiff

No appearance  for the Defendant

ZHOU J:  When an estranged man, incandescent with sardonic fury, walks into the office of an attorney and hysterically remonstrates about the loss of his consortium omnis vitae to another man, the law imposes the same obligation upon the attorney to objectively advise the client as to his rights and remedies as well as the appropriate forum in which such rights may be enforced, as in any other case.  The facts and circumstances of the instant case, even though it is an unopposed claim for adultery damages, demand that a written judgment be prepared.

The Plaintiff married one Marian Katsande (nee Chinyanga) at Harare in December 1993. They were blessed with children.  The pleadings and papers filed do not reveal the number of children. They moved to the United Kingdom, and are presently resident in Scotland.  He is pursuing studies for a Bachelor of Science degree in Imaging and Diagnostic Sciences at Caledonia University, Glasgow.

The Defendant is also resident in the United Kingdom.  His address given in the summons is Flat 439 Mitchell Road, EH 67AR, Edinburg, United Kingdom.

On 15 February 2012 a summons was issued at the instance of the Plaintiff.  The Plaintiff claims the sum of two million five hundred thousand United States dollars as damages for adultery.  On 5 March 2012 the Plaintiff was granted leave to serve the summons and declaration upon the defendant outside the jurisdiction of the Court.  The summons and declaration were served upon the defendant in the United Kingdom by the Messenger-at-Arms on 4 April 2012.  The Defendant has not entered appearance to defend.  He is accordingly barred in terms of the rules of court.  The matter was accordingly enrolled on the unopposed roll.

The plaintiff’s claim is set out as follows in the relevant paragraphs of the declaration:

“3.	The Plaintiff got married to Marian Katsande (born Chinyanga) at Harare Zimbabwe on 17 December 1993 an (sic) the marriage still subsists.

4.	From a specific date to the Plaintiff unknown but extending from sometime in 2009 to the date when this summons has been issued, on divers occasions with the full knowledge of the existence of the marriage, the defendant has knowingly and intentionally committed adultery with Marian Katsande.

5.	The Plaintiff has not condoned the adultery.

6.	During this period but commencing on a date to the Plaintiff unknown the said Defendant moved into the matrimonial home cohabited and persists to cohabitate with Marian Katsande at Flat 4 39 Mitchell Road Edinburgh.

7.	As a result of the Defendant’s conduct the Plaintiff has been emotionally traumatised hurt and humiliated beyond endurance.

8.	More specifically the Plaintiff has suffered contumelia, the loss of consortium, deprivation of the privileges of married life and the alienation of love and affection from the said Marian Katsande.”

On 12 July 2012 the plaintiff filed a notice of amendment which amended paragraph 4 of the declaration to read as follows:

“From a specific date to the Plaintiff unknown but extending from sometime  in 2009 to the date when the summons was issued, on divers occasions, and at sundry places including the United Kingdom and Zimbabwe, with the full knowledge of the existence of the marriage, the Defendant knowingly and intentionally committed adultery with Marian Katsande.”

The notice of amendment was granted, albeit it has not been served upon the Defendant.  There can be no doubt that the amendment was filed to address the issue of jurisdiction. The matter was set down on the unopposed roll on 25 July 2012. On that day Mathonsi J asked the plaintiff’s counsel to address the issue of whether this Court has jurisdiction to entertain the claim, as well as the quantum of damages claimed.  In response, the plaintiff’s legal practitioners filed supplementary heads of argument, the matter having been postponed to 1 August 2012.

Jurisdiction means the power vested in a court by law to adjudicate upon, determine and dispose of a matter. Ewing McDonald & Co Ltd v M & M Products 1991 (1) SA 252(AD) at 256G.  The time for determining the jurisdiction of a court to entertain an action is the time of the commencement of the action.  An action commences when the summons has been issued and duly served. Terblanche No v Damji 2003 (5) SA 489(C ) at 498D-E;  Thermo Radiant Oven Sales (Pvt) Ltd v Nelspruit Bakeries (Pvt) Ltd 1969 (2) SA 295(A) at 310D;  Howard v Howard 1966 (2) Sa 718(SR);  David Pistorius, Pollak on Jurisdiction 2nd Ed, p.12.

Three common law principles underpin the exercise by a court of its jurisdictional powers generally.  These are the doctrine of effectiveness, the doctrine of submission and the actor sequitur forum rei rule.  See Herbstein & Van Winsen, The Civil Practice of the Superior Courts in South Africa, p. 29-31.David Pistorius, Pollak on Jurisdiction, p. 3-8.  The doctrine of effectiveness essentially means that jurisdiction depends upon the power of the court to give an effective judgment.  In the case of Steytler No v Fitzgerald 1904 TH 108 at 111 De Villiers JP held that:

“A court can only be said to have jurisdiction in a matter if it has the power not only of taking cognizance of the suit, but also of giving effect to its judgment.”

Then in Morten v Van Zuilecom (1907) 28 NLR 500 at 509 the court stated that the “great test of the jurisdiction of a court is its power to make its decree effective”. See also Thermo Radiant Oven Sales Ltd v Nelspruit Bakeries 1969 (2) SA 295(A) at 307;  Sonia (Pvt) Ltd v Wheeler 1958 (1) SA 555(A)at 563;Veneta Mineraria Spa v Carolina Collieries (Pvt) Ltd 1987 (4) SA 883(A) at 893.  In the instant case both the Plaintiff and the Defendant are peregrinii.  From the papers filed the Defendant is resident in the United Kingdom.  The Plaintiff is also resident in the United Kingdom.  The Plaintiff submits that he has not abandoned his domicile in Zimbabwe. But domicile is not a ground of jurisdiction in a delictual claim for adultery damages.  This Court cannot give effect to a judgment given in favour of the Plaintiff and against the Defendant where there has not been an attachment of the Defendant’s person or his property.  Such a judgment would be illusory, as it cannot be enforced.

Effectiveness underpins the rule that a Court will not entertain an action against a peregrinus unless there has been an arrest of his person or an attachment of his property. See Zakowski v Wolf 1905 TS 32 at 33;  Utah International Inc v Honeth & Others 1987 (4) SA 145(T) at 147.  The following passage from Erasmus, Superior Court Practice, p. A1-30, summarises the principle:

“Where the Plaintiff is a peregrines (foreign or local) and the Defendant is a foreign peregrines both a recognised ratio jurisdictionis and an arrest or attachment are essential.  In the absence of a recognised ratio jurisdictionis an arrest or attachment will be refused.”

In the instant case, quite apart from the fact that no arrest or attachment took place, the Plaintiff has not established any ratio jurisdictionis.  The cause of action arose outside the jurisdiction of this Court.  The notice of amendment filed on behalf of the Plaintiff does not clothe this Court with jurisdiction.  At the time that the summons was issued and served there was no averment that the cause of action had arisen in this jurisdiction.  The affidavit of evidence filed on behalf of the Plaintiff does not give any evidence of the commission of adultery in Zimbabwe.  Instead, it makes reference to the Defendant’s visit to the parents of Marian Katsande.

The Plaintiff has placed reliance on three cases. In the case of Distillers Co (Biochemicals) Ltd v Laura Ann Thompson 1971 AC 458 the cause of action arose in New South Wales, as the harmful drug was sold there and the injury was caused there as well.  The fact that the drug had been manufactured in England did not mean that the cause of action arose in England.  The cause of action was the wrong which was committed upon the Plaintiff.  In the case of Chaplin v Boys 1971 AC 356 the Court in the United Kingdom had jurisdiction on the basis of the actor sequitur forum rei, as the Defendant was resident in that jurisdiction.  In the case of Central African Airways Corporation v Vickers Armstrong 1956 (2) SA 492, the court had jurisdiction on the basis that the cause of action arose in its area of jurisdiction.  Accordingly, the three cases do not support the Plaintiff’s contention on the question of jurisdiction.

From the authorities cited above, given the facts and circumstances of the instant case, this Court does not have the jurisdiction to entertain this action.

Notwithstanding the conclusion which I have reached on the question of jurisdiction, I feel constrained to comment on the quantum of damages in the sum of two million five hundred thousand dollars which is claimed by the Plaintiff.  This is no doubt one of the numerous other cases in which there are claims for damages which are out of this world and bear no relation to the prevailing awards in this and other jurisdictions.  The legal profession must be reminded that they owe it to their injured clients to advise them of reasonable awards of damages, instead of creating misdirected expectation in the minds of their lay-clients who look up to them for advice.  In the present case counsel referred to cases decided in the 1990s, long before the advent of the multi-currency regime.  Yet there are many cases decided after 2009.  Even then, the cases referred to do not support the amount claimed or any reasonable fraction of it.

As the Defendant did not oppose the claim, there will be no order as to costs.

In the result, the Plaintiff’s claim is dismissed.

F. M. Katsande& Partners, legal practitioners for the plaintiff