Memory Kanyekanye (nee Sithole) v Celestino Chenjerai Kanyekanye

### Preamble
Judgment No. SC 90/25
1
Chamber Application No. SC 52/23
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REPORTABLE	(90)

MEMORY    KANYEKANYE     (nee SITHOLE)

v

CELESTINO     CHENJERAI     KANYEKANYE

SUPREME COURT OF ZIMBABWE

HARARE: 26 JUNE 2023 & 1 OCTOBER 2025

C. Damiso, for the applicant

R. G. Zhuwarara., for the respondent

IN CHAMBERS

CHIWESHE JA:

Introductory remarks

I first heard this matter on 31 March 2023 under case No. SC 52/23.  On that occasion I upheld the preliminary point raised by the respondent and ordered as follows:

“That the matter be and is hereby removed from the roll to enable the applicant to source and include the record of proceedings in the court a quo  and that the applicant shall meet the wasted costs on the legal practitioner and client scale.”

There was no deadline given for the applicant to comply with the directive to attach to its application the record of proceedings in the court a quo.  However, on                                       26 June 2022, the matter was again set down before me but not the full record was made available.  I proceeded to hear the parties nonetheless.  At the close of submissions, I dismissed the application and ordered the applicant to pay costs of the application.  I have been asked to provide the reasons for that order.  I do so hereunder.

THE APPLICATI ON

This is an opposed chamber application for condonation for non-compliance with r 38 (1) of the Supreme Court Rules, 2018 and extension of time within which to appeal made in terms of r 43 of the Supreme Court Rules, 2018.

THE FACTS

The parties were married in terms of the Marriages Act [Chapter 5:17]. The undisputed facts, as found by the court a quo, are that initially the parties were living in a rented house in Vainona, Harare.  The respondent then identified a vacant stand in Borrowdale.  He started purchasing this stand around 2008 and finished the payments on 23 August 2017.  He obtained title in his name.  The applicant contributed nothing to the purchase of this stand.  In 2008 the respondent put up a temporary structure on the stand (a shell).  The parties started living in that shell.  In September 2010, the applicant left the stand because she could no longer live in a shell.  In late 2008 or early 2009, the respondent started making improvements on the stand.  The applicant did not contribute to these improvements.  The applicant only returned to the stand in 2013, three years after her departure.  By then the respondent had completed building on the stand.  The applicant then went away and came back four weeks later to stay at the Borrowdale property.  During the three year period that the parties had separated, the applicant had gone to live with her male boss.  It was during that period that she had bought, with her own resources, the property called No 23 Kimmich Heights, 18 Fife Avenue, Harare.  The parties had reconciled for a while but the applicant finally moved out of the Borrowdale house and suggested that the parties formalise their divorce.

PROCEEDINGS IN THE COURT A QUO

In the divorce proceedings a quo, the burning issue was the distribution of the parties’ properties, especially the Borrowdale house.  The respondent had produced in the court a quo evidence, by way of receipts, of the purchases of the materials he used in the construction of the house.  He said that at the time the applicant left in 2010, the stand had been improved by 5%.  The applicant did not contribute anything to that 5%.  The respondent was adamant that the applicant had no legitimate claim to the Borrowdale property.  He stated that during their three year separation, each party was dealing with its own finances without reference to the other.

The applicant’s evidence in the court a quo was that the parties acquired the Borrowdale stand when they were still staying together as husband and wife.  She admitted that she did not contribute anything to the purchase of the stand but that she put food on the table and paid the maid.  She said that she contributed to the construction of the house through selling suits she had acquired from China in 2007.  She was claiming 50% share of the Borrowdale property.  She could not say how much she contributed nor could she produce any receipts to prove her contribution.  Asked if her salary account would show that she transferred any money to the respondent, she answered in the negative.  Neither could she produce any bank statement showing payment to the respondent.  She stated that in her plea she had claimed 30% share of the property but now she wanted 50%.  In addition, she wanted 100% share in 23 Kimmich Heights.  She admitted that the agreement of sale and title to the Borrowdale house was in the name of the respondent but insisted that she remained entitled to her share thereof.  On his part, the respondent was of the view that the applicant should only retain her property at 23 Kimmich Heights.

The parties also disagreed on the issue of custody and maintenance of their two children.

FINDINGS OF THE COURT A QUO

The court a quo noted, from the outset, that at the pretrial conference the parties agreed as follows:

(i)	  That a decree of divorce be granted

(ii)	That the non-custodial parent shall have reasonable access to the minor child

(iii)	That both parties shall contribute equally towards paying school fees and educational requirements for the minor child.

The court a quo also noted that the parties had agreed as to how their movable properties should be distributed between themselves.

It identified the following as the issues it was called upon to determine:

(i)	Whether or not the plaintiff (respondent in the present application) should be awarded custody of the minor child.

(ii)	How much maintenance should the non-custodial parent pay for the upkeep of the minor child.

(iii)	Whether or not the plaintiff (respondent herein) should contribute towards the educational requirements and maintenance of the major child who is abroad.

(iv)	Whether or not the post nuptial agreement entered into between the parties is binding.

(v)	Whether or not the defendant (applicant herein) should be awarded No 23 Kimmich Heights, 18 Fife Avenue and 50% of stand 693 Quinnington Township of plot 13 EA Quinnington, Borrowdale.

(vi) 	Whether or not the defendant (applicant) should be awarded the movable properties claimed by her.

Concerning the custody of the minor boy child, the court a quo determined that it was in the best interests of the child that custody be granted to the plaintiff (respondent herein). Its decision was based on the evidence placed before it.  It was common cause that the applicant worked in Shamva.  For that reason, she was away from Harare during weekdays, that is Mondays to Fridays.  She would leave the boy under the care of a maid and supervise the boy’s school work over the phone.  She would return to be with the boy only during weekends.  This meant that the minor child had no access to either of its parents during week days. The court a quo found, from the evidence presented, that the minor child’s school performance was deteriorating and the school teacher had raised complaints in that regard.

The court a quo noted that the applicant’s claim for continued custody was based solely on the ground that she was the biological mother.  It noted that in determining the question of custody, what was of paramount consideration was the best interests of the child.  In that regard, it relied on the decision of this court in Denhere v Denhere SC 51/17 where custody was awarded to the father on the basis that it was in the best interests of the child to do so.  Thus the court a quo observed, that the fact that the applicant is the biological mother does not, of its own accord, become the sole determining factor.  The best interests of the child must prevail.

In awarding custody to the respondent, the court a quo took a pragmatic approach that put the best interests of the child at centre stage.  It now meant that when the applicant was away in Shamva during the week, the minor child would be under the care and supervision of its biological father.  Hitherto, neither parent would be available to render such care and supervision during weekdays, which are also school days.  The new arrangement also meant that when the applicant was in Harare, she too would have access to the minor child. Indeed, the court a quo’s reliance on the decision in Tangirai v Tangirai HC 30/2011 was pertinent to the facts before it.  In that case, as in the present, custody was granted to the father as the mother was a cross border trader who was not always available.  Guvava J (as she then was) remarked that:

“The problem that arises when she is away will, in my view continue to present itself because the children are day scholars and will need to attend school on a daily basis.”

In casu, the minor child is also a day scholar! In granting custody to the respondent the court a quo considered that the applicant was usually absent from Harare, unlike the respondent.   It did not find the applicant unsuitable as a custodian as suggested by the applicant. Indeed it did not rule out the possibility of applicant regaining custody should her circumstances change in the future.

On the question of maintenance, the court a quo noted that the parties had agreed, at Pre- Trial Conference, that both parties would foot the costs of school fees and school requirements of the minor child equally.  As to the daily upkeep of the minor child, outside school fees and other school expenses, the court a quo ruled that USD 100-00 per month would suffice with the non-custodial parent paying half that amount, that is, USD50.00 and the custodial parent contributing the other half.  It noted that either party could contribute more if it so wished.

Regarding the major child studying outside the country, the court a quo accepted the respondent’s evidence that the applicant had sent this child to study at universities abroad without his knowledge or consent.  It queried whether, in the circumstances, the respondent should be ordered to meet this child’s cost of maintenance.  In any event, the child was now a major.  The court a quo was of the view that the applicant had not established her locus standi to sue on behalf of a major.  However, most importantly, the court a quo noted that at pre-trial conference, the applicant had confirmed that she was able to pay university fees for the major child.  The applicant had made a similar undertaking in her initial plea.  That being the case, the court a quo absolved the respondent from the responsibility of paying maintenance for the major child.

The court a quo ruled that the parties’ postnuptial   agreement, initially intended to be used in prior divorce proceedings under HC 6917/18 (which case the respondent had withdrawn) was valid and available for purpose of s 7 (5) of the Matrimonial Causes Act [Chapter 5:13] which provides that:

“In granting a decree of divorce ---- an  appropriate court may, in accordance with a written agreement between the parties, make an order with regard to the matters referred to in para (a) and (b) of ss (1)”.

The applicant had challenged the post nuptial agreement on the grounds that she was sleepy at the time that she signed it and initialled every page thereof.  She did not allege duress or undue influence.  She offered no legal basis for wishing to resile therefrom.  The court a quo, based on the evidence adduced, upheld the agreement.  It noted that the parties’ pleadings were very much in accordance with the terms of that agreement save for the fact that the applicant now sought to dispute the distribution of the immovable property.  The court                a quo was of the view that the belated challenge of distribution of the immovable property was an afterthought.  In the court a quo’s view, the evidence and the conduct of the applicant proved that she had acquiesced to the agreement.  It was the applicant who pursued the responded seeking to know when the parties should see their lawyer as provided by the agreement.  She paid half the legal fee of USD 250.00 for that purpose.  The parties attended the meeting with their lawyer, one Mr Shekede, and both parties stood by the agreement.  Mr Shekede testified confirming the arrangement between the parties.  The court a quo ruled that the postnuptial agreement was valid and binding.

The court a quo awarded the Borrowdale property to the respondent on the grounds that the applicant had neither contributed to the purchase of the stand nor to the construction of the house there at.  In doing so, the court a quo was guided in the exercise of its discretion by the provisions of the Matrimonial Causes Act [Chapter 5:13], in particular,                  s 7 (1) (4)  (a) to (g)  which outlines the factors that the court should take into account in order to achieve an equitable  distribution of the matrimonial property at divorce.  It relied on a number of authorities as to the interpretation and application of the provisions of that Act.  In particular it was alive to the formula outlined in Takafuma v Takafuma 1994 (2) ZLR 103 (S), where this Court stated that the assets should be grouped in three baskets of “his” “hers” and “theirs”.  It is the basket of “theirs” that should be shared first and, thereafter, there has to be a reason, guided by s 7 of the Matrimonial Causes Act, for  the court to take from “his” to “hers” or vice versa.  The court a quo also took into account the parties’ post nuptial agreement.

Aggrieved, the applicant noted an appeal to this Court.  However, the appeal was noted out of time, hence the present application for condonation.

THE LAW

The requirements for such an application to succeed are well traversed.  In determining the fate of the application, the court will be guided by a number of factors chief among which are:

The extent of the delay.

The reasonableness of the explanation for the delay.

The prospects of success on appeal.

The respondent’s interests in the finality of the judgment in his favour.

The convenience of the court.

The avoidance of unnecessary delay in the administration of justice, and;

The importance of the case.

These factors must be considered cumulatively and not in isolation of one another.  See Kombayi v Berkout 1988 (1) ZLR 53 (S).

PROCEEDINGS IN THIS COURT

The Pleadings

(i) The extent of the delay and the reasonableness of the explanation for the delay.

In her founding affidavit, the applicant avers that the judgment was delivered in her absence.  Mr S Katsuwa, her legal practitioner, noted that judgment on her behalf.  She instructed Mr Katsuwa to file a notice of appeal against the judgment of the court a quo on three grounds namely;

That the court a quo had erred in awarding the respondent the matrimonial home in Borrowdale to her exclusion, despite the fact that she had been married to the respondent for more than 18 years and that she had made contributions thereto.

The court a quo erred in ordering the appellant to pay for the educational requirements and maintenance of the parties’ major child, one Natasha Shingai Kanyekanye, who studies in Poland, whilst at the same time, being ordered to pay maintenance towards their minor child who is in secondary school.

The court a quo erred in awarding custody to the respondent.

The applicant says that she paid Mr Katsuwa the sum of USD 800.00 for the purposes of paying the costs of preparation of the record and the noting of an appeal.  A week later, Mr Katsuwa sent her a copy of the notice of appeal which she has attached to her founding affidavit as Annexure C.  She had queried why the notice of appeal had not been stamped by the Registrar.  Mr Katsuwa told her that the Supreme Court was now wholly electronic, such that documents were now filed on the computer and records kept electronically, without stamping.

Thereafter, Mr Katsuwa stopped communicating with her.  It was then that she made a report to the Law Society about Mr Katsuwa’s conduct.  On 3 September 2022, the applicant went to Mr Katsuwa’s office to confront him.  She was told that Mr Katsuwa was no longer working there.  She again tried to locate him through the Law Society but without success.  She needed him to give her the file pertaining her case in order to brief another lawyer.  To date she has not heard from him.

The applicant then engaged her present legal practitioners who, when checking with the Registrar of this Court, discovered that no appeal had been filed.  The lawyers advised her to make the present application. The applicant submits that the explanation for the delay is reasonable as it was caused by Mr Katsuwa’s errant behaviour and that his sins should not be visited on her.

(ii) Prospects of success

On the question of prospects of success, the applicant avers that the order of the court a quo vesting custody of the minor child in the respondent was not based on any prior finding of her unsuitability as a custodian of the minor child.  The court a quo took into account extraneous factors in making that decision, instead of taking a holistic approach.  The minor child was, whilst in her custody, doing well at school.  He was happy, healthy and had no problems living with his biological mother.  Displacing a child at such a tender age to go and live with his step mother and father he rarely saw, was not in the best interests of the child.  The applicant further stated that the parties had previously separated on three occasions.  She had then been left with the custody of the minor children.  She was able to fend for the children financially, socially and emotionally, a factor not taken into account by the court a quo.

On maintenance, the applicant was of the view that she was saddled with an onerous duty.  She has to look after her daughter studying in Poland and, at the same time, pay maintenance for the minor child who is in Zimbabwe. The respondent, who has greater financial means, was exempted from responsibility.  She said that it was not true that she had moved her daughter to Cyprus and then Poland, without her husband’s knowledge or participation.

Regarding the distribution of matrimonial property, the applicant attacks the judgment of the court a quo on the grounds that it should not have awarded the Borrowdale matrimonial home to the respondent to her exclusion.  She avers that this double storey home was jointly built by her and the respondent.   The court was dissolving a marriage of almost                   20 years.  It was wrong for the court a quo to let her walk out of the matrimonial home without a single entitlement.  The applicant also criticizes the court a quo for taking into account the provisions of a postnuptial agreement when the parties had already resiled from that agreement.  In doing so, the court a quo did not exercise the discretion bestowed upon it by s 7 (5) of the Matrimonial Causes Act [Chapter 5:13], judiciously.

(iii) Finality of litigation

Further, the applicant states that the court a quo did not take into account the provisions of s 26 (c) and (d) of the Constitution which provide that the State must ensure that there is equality of rights and obligations of spouses during marriage and its dissolution.

On the respondent’s interest in the finality of the judgment, the applicant states that both parties have moved on with their lives and that it is important that this matter be finalized by an appeal court so that the parties have finality.

The applicant further states that it is in the interest of justice that this matter be heard on appeal in order to correct the misdirection of the court a quo.

The respondent’s opposing affidavit is to the following effect.   The respondent raised two preliminary objections to the application, namely, that the case has become moot in that the applicant acquiesced to the judgment of the court a quo during the 10 months period preceding the date of the present application.  He avers that he has since remarried and the Borrowdale property concerned has since been renovated with the input of a third party.

The second preliminary objection was that the applicant had not paid the taxed costs awarded to the respondent in an earlier matter involving the parties, that is, case No          SC 665/22.   He states that costs of suit awarded must be paid before the applicant can embark on the present application involving the same cause of action as in SC 665/22.

On the merits, the respondent‘s averments are that the application has no merit because the judgment of the court a quo has already been executed.   The respondent states that the applicant has made, in her present founding affidavit, material changes to the founding affidavit under SC 665/22.  To that end, the respondent has incorporated, in his defence, all pleadings filed under case SC 665/22.  He also states that the record of proceedings a quo excludes the transcript of the trial and other documents, such as closing submissions.

He further states that in SC 665/22, (where the application was struck off the roll) in her explanation for the delay in noting an appeal, the applicant had stated that she had become impatient in waiting for the judgment of the court a quo and decided to make her own enquiries in May 2022 and found that judgment had been delivered.  The applicant stated that she was the one who alerted her legal practitioner about the judgment having been handed down.  However, in the present application, the applicant says it was the legal practitioner who actually notified her of the judgment.  The date of becoming aware of the judgment has also changed from May 2022 to 21 April 2022.  The respondent believes that these changes are meant to pre-empt the anomalies that he raised concerning the earlier application under                          SC 665/22.  In that matter, respondent had argued that if applicant had not been aware of the judgment, she would have questioned the relocation of the minor child from her home to that of the respondent (as per the judgment), and further, she would not have instructed Bruce Tokwe Commercial Law Chambers in June 2021.

Concerning the maintenance of the minor child, the respondent says he had offered to foot the bill for the full tuition of the minor child but applicant insisted that she pays half the bill, saying she had the capacity to do so.  That arrangement was agreed at the pre-trial conference.  The maintenance of the minor child was therefore not an issue before the court   a quo.

The respondent notes that for the first time the applicant says she has reproduced the notice of appeal by her erstwhile legal practitioner, Mr Katsuwa.  She does so to cover the anomalies raised by the respondent in SC 665/22, namely, that the appeal allegedly drafted by Mr Katsuwa appears to be forged for the following reasons:

It is identical to the draft appeal by applicant’s legal practitioners save for minor changes

The judgment of the court a quo records J. Mambara as the legal practitioners of the respondent (applicant herein). The pleadings show that Mr Katsuwa moved from Mudimu Law Chambers to J. Mambara before filing closing submissions.  The draft appeal attached to the application undersigns Chizengeya, Maesesera &Chikumba Legal Practitioners. The applicant does not say where exactly she looked for Mr Katsuwa before reporting him to the law society

Paragraph E of the notice of appeal addresses the question of condonation when supposedly, the appeal was on time. This also happens to be identical to the notice of appeal filed by the applicant’s present lawyers, including the number of dots after “SC”.

The applicant has not attached a soft copy of the receipt for the USD 800-00 allegedly paid to Mr Katsuwa.  She has, according to the respondent, altered her founding affidavit by saying that she attached only her second letter to the Law Society and not the first letter.  This follows respondent’s dispute of the contents of the first letter as a reading of the second letter shows that the complaint was not about an appeal but rather misplacement of other documents to be used in other cases.  The respondent avers that her first letter to the Law Society (according to her second letter to the same society) was written on 1 June 2022.  This second letter was a complaint against Mr Katsuwa for failing to file her appeal timeously.  This means that as early as 1 June 2022 the applicant was aware that no appeal had been noted.  She did nothing from that date until December 2022, a period in excess of six months.

The respondent has attached correspondence between Bruce Tokwe Law Chambers, acting on behalf of applicant, and the respondent’s legal practitioners.  The correspondence shows that the judgement of the court a quo was executed through the applicant’s lawyers.  The correspondence is marked Annexures AI-A8 and BI-B2 and is attached to the respondent’s opposing affidavit.  The respondent concludes that the correspondence, dating from 13 June 2022 to 5 August 2022, shows that at that stage the applicant had no intention of filing an appeal.  The applicant states that Bruce Tokwe Law Chambers declined to note her appeal “for personal reasons”.  She has not, however, filed an affidavit from a legal practitioner of that Law firm to substantiate her claim in that regard.  In, any event, according to the respondent, this explanation is an afterthought as the applicant’s affidavit under SC 665/22 was completely silent about this law firm.  If Bruce Tokwe Law Chambers could not file an appeal, the applicant could have instructed other legal practitioners. She took from 13 June 2022, when she approached Bruce Tokwe Law Chambers, to                           8 December 2022 to do so, a period of six months. Instead, during that period, she took the opportunity to collect every item she had been awarded in the judgment.  The applicant’s delay in filling the appeal was due to the fact that the applicant had acquiesced to the judgment and initiated its execution.

The respondent states that there are no prospects of success on appeal on the grounds raised by the applicant in her draft notice of appeal, that is;

Custody of the minor

The respondent says the decision of the court a quo to grant custody of the minor child to him was in the best interests of the child.  The major child was sent to study out of the country without his knowledge.  At one point the applicant abandoned these children when both of them were still minors and went to live with her male boss.

Maintenance

The respondent avers that it was agreed at the pre-trial conference that the parties would share equally the maintenance of the minor child.  Maintenance of the minor child was therefore not an issue before the court a quo.  The maintenance of the major child was a choice that the applicant made.

Distribution of immovable property situate at Borrowdale

The respondent states that the applicant did not contribute directly or indirectly to the development of this property. Instead, the applicant had secretly bought her own property which she was awarded by the court a quo. He states that the court a quo did not err when it relied on the postnuptial agreement of the parties governing the terms and conditions of their divorce. He avers further that he has since remarried and has thus moved on with his life.

In her answering affidavit, the applicant avers that the fact that the respondent has moved on is neither here nor there as she is only contesting three issues, namely, the distribution of the matrimonial home, custody of the minor child and maintenance.  She avers that the execution of a part of a judgment which is not subject to appeal is a non-issue.  That is why she noted only a partial appeal. She disputes the agreement made at pre-trial conference and demands that the minutes of that conference be produced.

She admits that she had not paid the costs awarded to the respondents in a previous matter.  She says that at the time of institution of these proceedings, the respondent had not indicated how much these costs were,

The applicant denies acquiescence with the judgement a quo, explaining that she only executed that part of the judgment that was not part of the appeal.  She also denies that she had changed material aspects of her founding affidavit in SC 665/22 in order to mislead the court.  She insists that any changes effected were purely typographical and “other changes”. The nature of the application remained the same at all material times.  The applicant explains that she has presented only a draft appeal which she got from Mr Katsuwa.  She says that she never got a receipt for the USD 800-00 that she paid to Mr Katsuwa.  The relationship between a legal practitioner and a client is based on trust.  For that reason, one does not seek receipts from one’s lawyer all the time, explains the applicant.

As to why she had not sought to engage Bruce Tokwe Law Chambers to note the appeal, the applicant says that the respondent was now married to the legal practitioner who was the parties’ conveyancer at the time the parties purchased the stand where they built their matrimonial home.  The respondent’s wife, Mr Ngara and Mr Bruce Tokwe were at university at the same time.  Being colleagues, they were unable to assist her save for the non-contentious issues.

The applicant confirms that the court order requires her to pay part of the school fees for the minor child.  She did so pay but says that fact does not amount to acquiescence to the judgment a quo.  The applicant denies that the child’s hygiene was suffering due to lack of a present parent.  She denies that the minor child failed to sit grade seven examinations, stating that the child opted not to sit that examination as he had sat his Cambridge examination in grade 6.  She disputed the child’s teacher’s evidence, adduced through text messages, to the effect that lack of parental presence was detrimental to the child’s performance and well-being. Similarly, she states that no evidence had been led that she had previously abandoned her children, and further, that leaving her minor son with her mother (son’s grandmother) accords with African culture and was therefore permissible.

The applicant’s draft grounds of appeal read as follows:

GROUNDS OF APPEAL

(1) The court a quo misdirected itself, and therefore erred in law, in taking custody away from the appellant and awarding it to the respondent, without first making a determination on what constituted the best interest of the minor child.

(2)  The court a quo improperly exercised its discretion and therefore erred in law in awarding custody of the minor child of the parties to the respondent.

The court a quo’s decision to make the appellant responsible for the payment of maintenance for both children of the parties was a gross misdirection on the facts in that no reasonable court applying its mind to the facts could have reached a similar conclusion.

The court a quo improperly exercised its discretion, and therefore erred in law, in granting the respondent 100 % entitlement to the matrimonial home of the parties in Quinnington, Borrowdale, notwithstanding the fact that the appellant made significant indirect and direct financial contributions.

As an alternative to 4 above, the court a quo’s finding that the respondent was entitled to sole and exclusive ownership of the parties’ matrimonial home in Quinnington Borrowdale was a gross misdirection on the facts in that no reasonable court applying its mind to the facts could have ever reached a similar conclusion.

The order of the court a quo namely that the respondent should be awarded 100% ownership of the matrimonial home of the parties in Quinnington Borrowdale is unconstitutional and invalid in that a Judge of the High court is mandated to take into consideration the notion of equality of spouses as espoused in s 26 (c) (d) of the Constitution of Zimbabwe, at the dissolution of a marriage.”

Submissions before this Court

In his heads of argument, Ms Damiso, for the applicant, submitted that the court a quo should have had regard to s 26 of the Constitution which espouses the principle of “equality of rights and obligations of spouses during marriage and at its dissolution.” If it had done so, it would have come to a different conclusion, giving equal rights and obligations to the parties in the manner it distributed matrimonial property and determined custody of the minor child and maintenance.  He is further submitted that the court a quo should have considered relevant International Law and all treaties and conventions to which Zimbabwe is a party as provided for under s 46 of the constitution.  These conventions include CEDAW, the Declaration of Human Rights and the African Charter on Human Rights.  He further submitted that, in addition, the Matrimonial Causes Act, in particular s 7 thereof, lays out the factors that the court should consider in the exercise of its discretion in the distribution of matrimonial property.   Reliance was placed on the case of Usayi v Usayi 2003 (1) ZLR 684 (5) where this Court recognised the indirect contribution a house wife makes to family assets by doing household chores and looking after the children.  In that case, this Court upheld the decision of the court a quo to grant a 50%, share of the property to the wife.  Reference is also made to the case of Mhora v Mhora SC 89/20 where this Court also upheld a similar ruling by the court          a quo.  It is conceded, however, that each case must be dealt with according to its own circumstances and merits and that judicial discretion is of paramount importance.

Ms Damiso also submitted that the court a quo did not take into account the fact that the parties had been married for twenty (20) years, that the applicant was gainfully employed and, at one time, she had, single handedly, financially contributed towards the children.  Thus the court a quo ignored the appellant’s direct and indirect contributions in the marriage.

On the question of custody, it was submitted that there was no basis for the court          a quo to remove custody from her because the child was doing well at school and that the child was in good health under her custody.  The removal of custody can only be done under special circumstances.  For that proposition Mr Damiso relied on the case of Dangarembizi v Hunda HC 240/17.

On the issue of maintenance, it was submitted that the court a quo did not play a balancing role as it loaded the duties and responsibilities of the maintenance of both the major child studying abroad and the minor child who lives in Zimbabwe on the applicant.   For these reasons, he submitted that the applicant had high prospects of success on appeal.

Ms Damiso urged the court not to visit the applicant with the sins of her legal practitioner who failed to note the appeal timeously.  She reiterated that the applicant had proffered a reasonable explanation for the delay.  She further submitted that the applicant had reasonable prospects of success on appeal as the court a quo had failed to exercise is discretion judiciously in awarding the immovable matrimonial property to the respondent.  She stated that   contribution was not the only consideration when dealing with distribution of matrimonial property at divorce.  She criticized the court a quo for its reliance on a post-nuptial agreement from which the applicant had dissociated herself.  In any event, argued Ms Damiso, that agreement was intended to be used in an earlier case and not the present case.

As for custody of the minor child, Ms Damiso submitted that the court a quo had not established the best interests of the child before wrongly awarding custody to the respondent.  She insisted that the order of the court a quo could not be sustained in the absence of a finding of improper parenthood on the part of the applicant.  She however conceded that the issue of maintenance of the major child had become moot.  For that reason, the applicant would not persist with it.

On the other hand, Mr Zhawarara, for the respondent, argued that the delay in noting the appeal was inordinate and without justification, that the judgement had been executed by the parties and that there were no prospects of success on appeal.

In particular, he argued that between 13 June 2022 and 5 August 2022, the parties, through their legal practitioners, engaged and executed the judgement of the court                a quo handed down on 14 April 2022.  The applicant, it was submitted, was silent as to why she delayed filing her appeal for six months after 13 June 2022 when she realised that Bruce Tokwe Legal Practitioners could not represent her on appeal.  She only filed an application for condonation on 7 December 2022, a period of six months from 13 June 2022.  In any event, the applicant has not filed an affidavit from Bruce Tokwe Legal Practitioners confirming her averments.  In that regard he submitted that the applicant was not being candid with the court. In Denhere v Denhere SC 51/17 the importance of a spouse to be candid with the court was emphasised and that certain consequences may befall such a spouse.

Mr Zhawarara further submitted that the applicant had not paid the taxed costs awarded in SC 665/22.  For that reason, the present matter ought to be dismissed.  In that regard he relied on the case of Makoni v Makoni & Anor SC 7/18.

It was Mr Zhuwarara`s view that the divorce matter between the parties was now moot as the respondent had remarried and the immovable property in Borrowdale had since been improved with the contribution of another party.  He relied in this regard on the case of MDC & Ors v Mushava & Ors SC 56/20 where this Court had this to say:

“…, a court may decline to exercise its jurisdiction because of an occurrence of events outside the record which terminates the controversy between the parties. If the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In addition, Mr Zhuwarara submitted that the judgment had been executed by both parties.  The execution was done at the applicant`s behest.  Execution brought the matter to its logical conclusion.  The applicant cannot now seek to appeal against the judgement of the court a quo having acquiesced to it.  The six months silence from the time applicant realised that Bruce Tokwe Lawyers could not appeal on her behalf is, according to Mr Zhuwarara, evidence of such acquiescence on the part of the applicant.

It was also submitted that there were no prospects of success on appeal.  It was noted that the marriage between the parties was out of community of property. Mr Zhuwarara contended that the Matrimonial Causes Act grants the court a quo the power to take from “his” or “hers” only when it is justifiable to do so.  He cited the case of Benson v Benson HC 2334/2007 where Hlatshwayo J (as he then was) remarked as follows;

“The proprietary rights of the parties upon divorce fall to be  determined in terms  of                    s 7 of the Matrimonial Causes Act [Chapter 5:13] and is not  about grabbing  as much as possible of what belongs to the other party while assiduously holding on to what one considers to be their own. Rather it is basically ensuring that each party keeps what is rightfully “his” or “hers” and is awarded a fair share of “theirs”.

Mr Zhuwarara also relied on the case of Takapfuma v Takapfuma supra. He observed that the applicant is not the proverbial housewife referred to in some cases as deserving a share in the husband’s property. Instead the applicant is “an independent woman, employed as a geologist, owning a restaurant with her own property.”

Mr Zhuwarara also disputed the assertion, by the applicant, that at one point the applicant provided for the family to the exclusion of the respondent.  It was submitted that such assertions were never made in the court a quo where the respondent could have fully denied the allegations as false.

He further submitted that the parties had a written and valid agreement in terms of which each party was to retain the immovable property registered in its name.  The applicant cannot renege on that commitment.

It was further submitted that the order granting custody of the minor child to the respondent was in the best interests of the child.  Section 81 (2) of the Constitution provides that the best interest of a minor child are paramount.  In any event, the maintenance of the minor child was not an issue as the parties agreed its terms at Pre-Trial Conference.  Further, the major child is now an adult, and for that reason, the applicant no longer had locus standi to sue for maintenance on her behalf.  It was argued that the balance of convenience favoured the dismissal of the present application.

Mr Zhuwarara insisted that the applicant failed to give a reasonable explanation for the delay.  He said that the grounds of appeal do not attack the manner in which the court     a quo exercised its discretion.  One cannot now do so from the bar.  He reiterated that the question of maintenance of the minor child was settled at the pre -trial conference and was thus never an issue before the court a quo.  He defended the court a quo’s reasoning in the manner it had distributed the immovable property, noting that the court a quo had properly exercised its discretion.  He also said the court a quo was properly guided by the provisions of the post-nuptial agreement as same was valid and binding between the parties.  Further, the respondent was adamant that the parties had executed the judgment of the court a quo.  The applicant had therefore acquiesced to it and should not be allowed to appeal the judgment.

Mr Zhuwarara however did not, in the heads of argument nor at the hearing, motivate the preliminary points raised in the opposing papers. The assumption is that the same had been abandoned.   However the same points were covered as part of the arguments on the merits.

ANALYSIS

The extent of the delay and the reasonableness of the explanation for the delay

The delay of six months is inordinate given the circumstances of this case. Particularly concerning was the delay from 13 June 2022 to 5 August 2022 when the applicant was engaging Tokwe legal practitioners with a view to execute the judgment of the court a quo. No plausible reason has been advanced as to why the applicant did not instruct these lawyers to represent her on appeal.  Her inaction in that regard suggests that she was happy with the judgment and had no intention of appealing against it.  She says the Tokwe lawyers would not do it for personal or professional reasons. Yet she does not attach any affidavit from those lawyers confirming that part of her explanation. In the absence of such evidence the applicant’s explanation cannot be plausible.  In any event, she did not seek to engage other lawyers in place of Bruce Tokwe Legal Practitioners

The story about Mr Katsuwa’s misconduct raises more questions than answers.  The applicant says she paid Mr Katsuwa the sum of USD 800-00 for purposes of noting the appeal.  She is unable to produce any receipt to confirm that payment.  In fact, she says she was not given any receipt at all.  That is very unlikely considering the amount involved.  She then says to date she is unable to find Mr Katsuwa’s whereabouts.  The respondent says            Mr Katsuwa is still practising in Harare, be it with another law firm.  The applicant has not refuted that assertion. An affidavit sworn to by Mr Katsuwa would have made interesting reading.  None has been provided.

Prospects of success on appeal

In view of the parties’ agreement at the pre-trial conference, there are no prospects of success on the question of maintenance of the minor child.  The applicant has abandoned the claim for maintenance for the adult child studying abroad.  That is the end of the matter.

Similarly, the order granting custody of the minor child to the respondent was arrived at with the best interests of the child in mind.  There is no basis upon which an appeal court would interfere with the decision of the court a quo.

In determining the distribution of the parties’ immovable property at divorce, the court a quo was guided by parties’ post-nuptial agreement and the provisions of the Matrimonial Causes Act and case law.  It exercised its discretion fairly and judicially after a through interrogation of the facts. An appeal court will not lightly interfere with the discretion of the court a quo.  See Barros v Chimponda 1991 (1) ZLR 58(5).  Thus there are no prospects of success as well in that regard.

The respondent’s interest in finality of judgment.

The respondent has since moved on with his life.  In the circumstances of this case there is no reason whatsoever why he should be endlessly engaged in legal suits over a matter that all along he had been made to believe had been finalized.

Unnecessary delay in the administration of justice and the convenience of the court.

As indicated above, such delays in the administration of justice must be avoided. This application is a clear example of such unnecessary delays.  It has no merit.

The importance of the case.

This case is of no more importance than any other case dealing with post-divorce matters.  The law regarding such matters is well traversed.  There is nothing new or novel that could elevate its importance beyond that of other matters of a similar nature.

Section 26 of the Constitution  of Zimbabwe and International Conventions

The applicant has, in her heads of argument and in the grounds of appeal, submitted that the court a quo should have taken into account the provisions of s 26 of the Constitution and other international instruments, so as to arrive at a decision that recognizes the equality of the spouses when distributing immovable property at divorce.  It is submitted that failure to do so on the part of the court a quo amounted to a misdirection which denied the applicant her right to equality of the spouses at divorce.  This thrust of the applicant`s case was never presented in the court a quo.  It is being raised for the first time in this application.  The purpose of an appeal is to test the correctness of the judgment of the court a quo.  The court        a quo did not and could not determine an issue not put before it.  There being no decision by the court a quo, no appeal can arise in the circumstances.

DISPOSITION

I am satisfied on the strength of the papers and submissions made that there is no merit in this application.  The delay in noting the appeal is inordinate and no plausible explanation has been offered for that delay.  Further, I am of the view that there are no reasonable prospects of success in the intended appeal.

It was for these reasons that I dismissed the application and ordered that the applicant pays the costs of the application.

L.T. Muringani Legal Practice, applicant’s legal practitioners.

Ndlovu & Patt Law Chambers, respondent’s legal practitioners.