Zhung YING SONG V MIAO YU

### Preamble
1
HH 148-13
HC 1733/13
---------


ZHUNG YING SONG

versus

MIAO YU

HIGH COURT OF ZIMBABAWE

GUVAVA J

HARARE, 4 April 2013

Chamber Application

N Chikono, for the applicant

GUVAVA J: The applicant filed an application seeking an order for substituted service in terms of Order 6 Rule 46. The facts of the matter are as set out in the applicants founding affidavit and may be summarised as follows:

The applicant and the respondent are both Chinese nationals. They have been resident in Zimbabwe since 2003. On 23 December 2003 they married in terms of the Marriage Act [Cap 5:11] in Harare. The marriage still subsists. Following irreconcilable differences the respondent deserted the marital home in 2010. The applicant does not know where the respondent currently resides. He wishes to institute proceedings for a decree of divorce before the High Court in Zimbabwe. He has thus applied through the Chamber book for an order for substituted service in the following terms:

“(a)	An order for substituted service of summons for divorce be and is hereby granted.

(b)	Leave be and hereby granted to the applicant to serve a copy of the summons for divorce in case number HC 304/13 together with the notice of set down, through publication in the local newspaper circulating daily in Zimbabwe.

(c) 	Costs shall be in the cause.”

Upon receipt of the application I raised a query with the applicants counsel as it did not appear to me that the Court had jurisdiction to deal with the matter. The applicant then filed a supplementary affidavit where he stated in paragraph 6 as follows:

“I am advised, which advice I accept, that this Honourable Court has power in terms of s 3 (1) (b) to entertain my matter in that after the marriage my wife stayed more than two years before I instituted divorce proceedings and I believe she still resides here although she deserted me and failed to tell me where she is staying now. .....”

The above quoted statement does not state which statute the applicant was relying upon. However when I queried with the applicant’s counsel he stated that he was referring to the Matrimonial Causes Act [Cap 5:07].

I dismissed the application as I was of the view that the High Court did not have jurisdiction to determine the divorce. The applicant has sought my reasons for dismissing the application. These are they:

It is trite that the common law position in this country is that the court’s jurisdiction in divorce matters is based upon the domicile of the husband at the time the action is instituted. (See De Jager v De Jager 1998 (2) 419 at 420 and Dennis Gregory Kung v Beverley Maria Kung SC 16/08). This means that for the applicant to institute divorce proceedings in this court he must be domiciled in Zimbabwe.

It is also trite that the issue of jurisdiction may be raised by the court mero motu. In the case of Boswinkel v Boswinkel 1995 (2) ZLR 58 CHATIKOBO J dealt with this very point and stated the following at p60:

“Indeed if it were to appear to the court either from pleadings or from the evidence led that the question of domicile was in doubt, then in such event the court itself would mero motu raise the question of domicile in order to satisfy itself that the basis of jurisdiction relied upon had been established...”

I am therefore satisfied that I could properly raise the matter mero motu.

Where a husband in divorce proceedings is not domiciled in Zimbabwe this court has additional jurisdiction in terms of the Matrimonial Causes Act [Cap5:07]. The relevant provision provides as follows:

“3 Additional jurisdiction

Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant-

If the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion; or

If the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or

If at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.

The High Court shall, in an action referred to in subsection (1), have jurisdiction to entertain any counterclaim made by the husband which arises out of the marriage.

In any proceedings in which the High Court has jurisdiction by virtue of this section the issue shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in Zimbabwe at the time of the proceedings.”

The provision in my view is clear and unambiguous. The provision covers instances where the applicant is the wife and she wishes to sue her husband, who is not domiciled in Zimbabwe, for a divorce.  It is clear to me that the applicant’s counsel was wrong to rely on the above provision as the applicant, being the husband, is not covered by section 3 of the Matrimonial Causes Act. This is because the legislature was concerned by wives who would have been prejudiced because their husbands may no longer be domiciled in Zimbabwe. The mischief that the legislature sought to deal with was clearly in circumstances where a wife wanted a divorce and the husband had changed his domicile or deserted her.

The husband on the other hand is free to change his domicile should he so wish in order for the court to acquire jurisdiction. In the case of George Chikwenengere v Juliet Chikwenengere SC 75/06 the court dealt at length with the issue of domicile. The court found that there were three varieties of domicile that is domicile of origin, domicile of dependence and domicile of choice. To acquire domicile of choice the applicant must establish that he is resident in the country concerned; that he has the intention of residing there permanently and that the choice has been made freely. The applicant in this case has not relied on the basis of domicile as he has chosen not to change his domicile.

Having sought to bring the application on the basis of the additional jurisdiction as provided for by the Matrimonial Causes Act I was of the firm view that the applicant was not covered by the Act.

It was on this basis that I dismissed the application with no order as to costs.

Ngarava, Moyo & Chikono, applicant’s legal practitioners