Lucia Vela v Costa Magolis

### Preamble
1
HH429-13
HC 4683/13
---------


LUCIA VELA

versus

COSTA MAGOLIS

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 14 November 2013

Unopposed Court Application

Family Law Court

C. Mavhondo, for the applicant.

No appearance, for the respondent

MAWADZE J.   The facts of the matter brings into focus the challenges this court will always have in unopposed divorce matters where one of the parties to the proceedings decides to act fraudulently and abuses the procedure adopted in such matters. What leaves a bitter a taste in the mouth as it were, is that the presiding judge acting attentively and with due diligence may not detect such fraud. It is precisely for this reason that I have decided to write this judgment in an unopposed matter so as to highlight this problem and possibly alert a number of legal practitioners who may fall prey to this type of devious conduct.

The applicant approached this court seeking the setting aside of the judgement granted by this court on 12 February 2009 in HC 7052/09 and that the respondent pays the costs of this application on a legal practitioner – client scale. A reading of the applicant’s founding affidavit suggests that the application is being made on two grounds. Firstly applicant relies on the provisions of r 449 of the High Court Rules 1971, specifically r 449(1) (a) which empowers this court to rescind or set aside any judgment or order that was erroneously sought or erroneously granted in the absence of any party affected thereby. Secondly the application is premised on the common law basis of fraud. It was because of this apparent lack of clarity on the basis upon which the application is made that I invited Mr Mavhondo to file heads of argument in that regard and also the specific nature of the relief sought. I am indebted to Mr Mavhondo’s brief but very useful heads of argument.

The background facts of the matter are as follows;-

The applicant is currently based in the United Kingdom where she is employed as a nurse. On 12 June 1998 the applicant married the respondent in terms of the Marriage Act [Cap 5:11]. The marriage was blessed with three children namely, Lyle Daleroy Magolis (born on 11 December 1996), Larry Denzel Magolis (born on 10 July 1999) and Duncan Lance Magolis (born on 6 March 2002). The applicant relocated to the United Kingdom in 2001 and has been based there to date. The applicant has custody of the three children born of the marriage. According to the applicant she only returned to Zimbabwe for a brief period in 2005 and returned to the United Kingdom the same year. Annexure ‘F’ was attached to support this fact. Since then she has never been to Zimbabwe to date except in May 2013.

According to the applicant the respondent later followed her in the United Kingdom but they started to have marital problems culminating in their separation while in the United Kingdom in 2007. Thereafter applicant only returned to Zimbabwe on 7 May 2013 when she discovered that she had been fraudulently divorced. She returned to the United Kingdom the same month.

According to the applicant when she discovered that she had been improperly divorced in Zimbabwe in 2009, she tasked her legal practitioners of record to find out what has happened. The following facts emerge from her founding affidavit and Annexures attached thereto;

Sometime in December 2002 the respondent Costa Magolis in the company of a certain woman masquerading as the applicant approached Mr Mapondera of Mapondera and Company indicating that they wished to be divorced and also that they had agreed to the terms of the divorce. The following facts emerged from Mr Mapondera’s letter dated 16 May 2013 when he was asked by applicant’s legal practitioners to explain his role in this whole saga. According to Mr Mapondera this woman, purporting to be applicant, and the respondent agreed to use him as their legal practitioner representing both of them in the divorce matter in order to save costs. Apparently Mr Mapondera did not realise then the impropriety of representing both parties in a divorce matter at that stage of proceedings. The conflict of interest is apparent despite the fact that the divorce was proceeding by consent.

According to Mr Mapondera he drafted summons with this woman masquerading as the applicant being the plaintiff. The summons and declaration were issued out of this court on 15 December 2008 (Reference No. RKAM/gm/m22128). The summons and declaration were then served on the respondent on 19 December 2008 at the Deputy Sherriff’s offices. The divorce order under case no. HC 7052/09 was granted by consent on 12 February 2009 by my brother MUSAKWA J.

The record of proceedings in HC 7052/09 (the main matter) reflects the following;

A consent paper purportedly signed by applicant and the respondent on 17 September 2008 and filed with this court on 15 January 2009 indicating that applicant and respondent agreed to all the ancillary issues relevant to the divorce which are;

that custody of the three minor children be awarded to the plaintiff (applicant) with the respondent enjoying reasonable access in consultation with the plaintiff.

the plaintiff (applicant) was to be awarded all movable assets as her sole and exclusive property. These moveable assets are however not itemised in any manner in the consent paper.

that the three (3) immovable properties were to be donated to the three (3) children of the marriage that is No. 34 Wyvern Avenue, Belvedere North, Harare to be registered in the joint names of Lyle Dalery Magolis and Duncan Lance Magolis. Flat No. 42 Rosewell Court, Harare and Flat No. 19 Gail Court, Harare to be registered in the name of Larry Denzel Magolis. It is important to note that there is no time frame given within which the transfer should be done, there is no indication of in whose names the three properties are currently registered, who pays the transfer costs and the provision that the Sherriff signs all papers to effect transfer if either party fails to do so upon request.

The plaintiff (applicant) was to pay maintenance for the 3 minor children in the sum of Zimbabwe $5 million per month. What is important to note is that this figure is not individualised per child and was never converted to the multi currency regime. What is of great importance however is that it is the plaintiff (applicant), the party awarded custody of the three minor children who was to pay maintenance for the same children, including full school account, purchasing of clothes twice a year in January and July, medical aid cover until all the children are 18 years or self supporting whichever occurs first. The respondent who is alleged to have perpetrated this fraud did not shoulder any responsibility in respect of the children despite being the non custodial parent!! This anomaly is not explained either in plaintiff’s (applicant) Affidavit of Evidence or respondent’s Affidavit of Waiver.

that each party bears its own costs.

The woman (plaintiff in the main matter) purporting to be the applicant deposed to an Affidavit of Evidence on 27 January 2009. This affidavit was commissioned by a legal practitioner. It is interesting to find out how this legal practitioner would be able to explain how he/she commissioned this affidavit when the applicant was not the person before him/her! The Affidavit of Evidence as usual outlined the grounds of divorce, being that the parties had separated for five years, have irreconcilable differences and have lost love and affliction for each other as they no longer share conjugal rights. The Affidavit of Evidence as usual refers to the Affidavit of Waiver and identifies the significance thereon as that of respondent. It also refer to the Consent Paper and identifies the signatures of the parties thereon. The applicant denies ever deposing to such an affidavit and stated that on 27 January 2009 when the affidavit of evidence was signed and commissioned in Zimbabwe she was in the United Kingdom. The applicant also distances herself from the Consent Paper whose contents I have already alluded to.

The respondent as is required deposed to an Affidavit of Waiver. The problem with this Affidavit of Waiver is that it is signed by the respondent on 17 September 2008. The glaring anomaly is that by 17 September 2008 Respondent had not been served with the summons which were issued out on 15 December 2008 and served on him on 19 December 2008. What is surprising is that in the Affidavit of Waiver the respondent alleges that by 17 September 2008 applicant (plaintiff) had instituted divorce proceedings and that he had by then been personally served with the summons!! That cannot possibly be true! The respondent also alleges that the signature on the Consent Paper belongs to the applicant (plaintiff). This is disputed by the applicant.

The record of proceedings in the main matter HC 7052/09 shows that after having filed all the required papers in an uncontested divorce matter Mapondera and Company proceeded to set the matter down on the unopposed roll on 12 February 2009. On 12 February 2009 my brother MUSAKWA J. After perusing the papers, hearing Mr Mapondera   and satisfied that all is in order granted the following order;

“IT IS OPRDERED THAT;

A decree of divorce be and is hereby granted.

Custody of the three minor children LYLE DALEROY MAGOLIS (born 11/12/1996) LARRY DENZEL MAGOLIS (born 10/07/1999) and DUNCAN LANCE MAGOLIS (born 06/03/2002) be awarded to the plaintiff with defendant having reasonable access to them in consultation with plaintiff.

The consent paper filed of record and signed by both parties and attached to this order shall regulate the following matters:

The rights to maintenance and other payments and benefits for the minor children.

Access to the minor children

The proprietary rights of the parties as between themselves.

Each party shall pay its own costs.”

Mr Mapondera appeared for the plaintiff (applicant) in the main matter. It is the order which the applicant seeks to have set aside. Her reasons which are not disputed, are confirmed in her founding affidavit and I shall briefly summarise them.

According to the applicant she only became aware of the court order in December 2012 (she does not explain how) and was shocked to learn that she was divorced apparently with her as the plaintiff!! The applicant denies instituting the divorce proceedings in the main matter HC 7052/09 and that it is her legal practitioners of record who unearthed this fraud.

The applicant’s assertions find favour with Mr Mapondera’s admission contained in his letter dated 16 May 2013. Mr Mapondera is the one who drafted the pleadings in the main matter HC 7052/09 and purportedly represented the applicant (plaintiff) in this matter. Mr Mapondera admitted that when the respondent approached him in the company of a woman who purported to be the applicant seeking his services in instituting divorce proceedings he made the cardinal sin of not checking the identity particulars of the persons from whom he was taking instructions and subsequently represented. He naively admits that he assumed as he was being told that the persons were husband and wife as reflected on the marriage certificate he was given. The applicant denies ever approaching Mr Mapondera seeking to institute divorce proceedings or instituting such proceedings. Applicant denies that she was the plaintiff in the main matter HC 7052/09. This fact is uncontroverted.

The applicant denies ever giving instructions to Mr Mapondera in respect of HC 7052/09 or any matter. Applicant denies signing the Affidavit of Evidence filed in the matter. She also deny signing the Consent Paper. In fact it is applicant’s case that when the divorce proceedings were commenced in December 2008 until 12 February 2009 when the divorce order was granted, she was never in Zimbabwe but was in the United Kingdom. It is applicant’s case that the respondent who knew that she was in the United Kingdom perpetrated the fraud. In brief applicant said she went to the United Kingdom in 2001 and briefly returned to Zimbabwe in 2005 and returned to the United Kingdom the same year. She attached Annexure ‘F’ her expired Zimbabwean passport to support these facts. In fact on 27 January 2009 when applicant purportedly signed the Affidavit of Evidence in Zimbabwe she said she was at her workplace in the United Kingdom. Applicant states that the respondent fraudulently obtained the divorce order by using an unknown woman who masqueraded as the applicant and forged her signatures on the Consent Papers and Affidavit of Evidence.

On 7 May 2013 when applicant returned to Zimbabwe for a month she filed a police report CR 1358/05/13 against the respondent which report is attached as Annexure ‘H’. The report makes interesting reading;

(i)	Applicant reported respondent for committing bigamy as respondent in 2007 had married another woman Jane Tonderai Mwareka  (a copy of the marriage certificate was provided) when the marriage to the applicant solemnised on 12 June 1998 being monogamous was subsisting, and well before the alleged fraud dissolving it on 12 February 2009.

(ii)	Applicant reported respondent for fraud. The basis for fraud being that the respondent misrepresented to the High Court in HC 7052/09 that applicant had instituted divorce proceedings and signed the relevant Affidavit of Evidence and Consent Papers causing the High Court to act on the said misrepresentation to the prejudice of the applicant by issuing a divorce order.

(iii) In the alternative applicant reported respondent for forgery arising from the forging of applicant’s signature on the Affidavit of Evidence and Consent Paper. In the alternative applicant laid charges of perjury in that the respondent made a false statement under oath for purposes of judicial proceedings in HC 7052/09 in that he had entered into an agreement with the applicant as per the Consent Paper. These averments are in respondent’s Affidavit of Waiver which Affidavit of Waiver was signed on 17 September 2008 two months before summons were issued and served on the respondent.

In support of the allegation that applicant did not sign the Affidavit of Evidence and Consent Paper, the applicant attached Annexure ‘J’, a forensic report which concludes that the signatures on the Affidavit of Evidence and Consent Paper in HC 7052/09 were forged and do not belong to the applicant.

Applicant in her founding affidavit explained the prejudice she suffers if the order granted in HC 7052/09 is not set aside. According to the applicant when she married respondent in 1998 both parties had no property of note but through their joint efforts and most importantly her income when she settled in the United Kingdom, in 2001 they acquired eight (8) immovable properties listed on pp 6 of the record and not the three (3) immovable properties respondent refers to in HC 7052/09.  All this immovable property is in Harare and applicant believes they should be apportioned fairly between the parties. Applicant is of the view that the respondent may dispose of some of the property as all the property except in Belvedere North property is registered in his name including the flats ostensibly donated to the children. Applicant said there is in no proof that the said property donated to the children had in fact been registered in their names. Applicant is staying with the children in the United Kingdom and is keen to ensure that some immovable property in Zimbabwe is provided for the children who may later wish to settle in Zimbabwe. Applicant therefore believes that order granted in HC 7052/09 should be set aside so that all these concerns are addressed.

I am not satisfied that the order granted in HC 7052/09 can be set aside on the basis of the provisions of r 449(11) (a) of the High Court Rules 1971. While the order was made in the absence of the applicant as alleged and that applicant is affected by that order; I am not satisfied that the order was erroneously sought or erroneously granted. The only possible error referred to is that the Affidavit of Waiver was signed on 17 September 2008 when before summons were issued on 15 December 2008 and served on 19 December 2008. The respondent in that Affidavit of Waiver purports to have been served with summons by 17 September 2008. In my view this anomaly is not proof of an error but rather of fraud.

I now turn to the law regarding the aspect of fraud.

It is trite law that a judgment or order may be set aside or rescinded on the common law basis that it was procured through fraud. The celebrated authors Herbstein and Van Winsen in THE CIVIL PRACTICE OF HIGH COURTS AND THE SUPREME COURT OF APPEAL OF SOUTH AFRICA 5TH EDITION as pp 939 discuss this aspect and state inter alia that,

“a judgment procured by fraud of one of the parties whether by forgery, perjury or in any other way such as fraudulent withholding of documents cannot be allowed  to stand ------------. It must however, be shown that the successful litigant was a party to the fraud or perjury on the ground of which it is sought to set aside the judgment. Furthermore, there must be proof that the party seeking rescission was unaware of the fraud until after judgment was delivered ---------------------------------. The person seeking relief must be able to show that because of the fraud of the other party, the court was misled into pronouncing a judgment which, but for the fraud it would not have done” at pp 939 - 940

See also Bridget Koroni and Pamela Zvidzai v Desmond Rusere & 3 Others HH 304-11 at pp 3 of the cyclostyled judgment per MAKONI J.

The learned authors Hebstein and Van Winsen supra at pp 940 – 41 cite the case of Swart v Wessels 1924 OPD 187 at 789 – 790 which explains the nature of the onus the applicant has to discharge in seeking or setting aside of a judgment procured through fraud. A party seeking such a relief on its grounds of fraudulent evidence must prove the following;

“(1)	that the evidence was in fact incorrect

(2) 	that it was made fraudulently and with intent to mislead, and

(3)	that it diverged to such an extent from the true facts that the court would, if the true facts had been proved before it, have given a judgment other than what it was induced by the incorrect evidence to give.”

The facts of this case which I have discussed at length are on all fours with the principles enunciated above. If the applicant did not institute divorce proceedings in HC 7052/09 and did not depose to the Affidavit of Evidence and did not sign the Consent Paper, it is as clear as the blue sky that the order granted or HC 7052/09 was procured through fraud and cannot stand. If the court was aware of these facts it is clear that a decree of divorce would not have been granted.

When Mr Mavhondo filed heads of argument he sought to amend the relief sought to read as follows;

“It is ordered that ;

The rest of the court order granted by this honourable court on 12th of February 2009 under case number HC 7052/09 be and is hereby confirmed save for the part regulating property rights of the parties which is hereby set aside.

The Respondent to pay costs of the application on a legal practitioner – client scale.”

The stance adopted by the applicant as per the amendment made by Mr Mavhondo while understandable is not sustainable at law. It is understandable because the applicant concedes in the founding affidavit that by 2007 her marriage to the respondent had irretrievably broken down and the parties had separated in the United Kingdom. In fact the drama continues to unfold.

On 27 February 2009 the applicant petitioned the court in the United Kingdom for a decree of dissolution of the marriage which decree was issued on 6 May 2009 (three months after the fraudulent order in Zimbabwe in HC 7052/09). Applicant attached a copy of the order as Annexure ‘K’. Although it is not authenticated and notarised I have no doubt that applicant is being truthful in that regard. Applicant further explains that the issue of the assets of the parties situated in Zimbabwe was not dealt with by the United Kingdom court and that she was advised that it would be competent for her to file such a claim in Zimbabwe. When a decree for the dissolution of the marriage was granted in the United Kingdom on 6 May 2009 applicant was unaware of the fraudulent order issued in Zimbabwe on 12 February 2009. To further complicate matters applicant in 2012 married another man in the United Kingdom as she was a divorcee as per the United Kingdom order of 6 May 2009. Applicant has however separated from this man!!

Be that as it may once the order granted on 12 February 2009 in HC 7052/09 is set aside on the basis of fraud the whole proceedings in HC 7052/09 become a nullity. Such an order cannot be partially rescinded irrespective of the circumstances of the parties. I cannot do more than to quote  the wise words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 PC at 117621;

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Having made this finding that the order granted in HC 7052/09 was procured through fraud it stands to reason that the whole order should be set aside. In any event the parties remain divorced as per the decree of dissolution of the marriage issued in the United Kingdom on 6 May 2009. The setting aside of the order granted by this court on 12 February 2009 would therefore not adversely affect to the rights and status of the parties. The applicant can still pursue the issue of the sharing of the immovable assets of the parties situated in Zimbabwe.

In view of the apparent increase in the number of cases of fraud of this nature in divorce proceedings (I dealt recently with a chamber application for substituted service in which I recommended the investigation as applicant in that matter also claimed not to have instituted any divorce proceedings like in casu), I have directed the registrar of the High Court to bring this judgment to the attention of the Secretary or the Law Society of Zimbabwe so that legal practitioners are alerted to prevalence of this obnoxious practice which threatens to erode confidence in our judicial system in unopposed divorce matters.

In the result I will make this following order;

The judgment granted by this honourable court on 12 February 2009 in case number HC 7052/09 be and is hereby set aside.

The respondent shall pay the costs of this application on a legal practitioner- client scale.

Mhishi Legal Practice, applicant’s legal practitioners