Tinei Mautsa v Melody Kurebgaseka

### Preamble
Judgment No. SC 134 /20
1
Chamber Application No. SC 269/20
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NOT REPORTABLE/ NOT DISTRIBUTABLE

TINEI     MAUTSA

v

MELODY     KUREBGASEKA

SUPREME COURT OF ZIMBABWE

MAVANGIRA, JA

HARARE: 29 JULY & 15 OCTOBER, 2020

T.L. Mapuranga, for the applicant

C. Malaba, for the respondent

IN CHAMBERS

MAVANGIRA JA:	 This is an application for condonation for non-compliance with Rule 38 of the Supreme Court Rules, 2018 and extension of time within which to file and serve a notice of appeal.

FACTUAL BACKGROUND

The facts of the main matter as discernible from the judgment of the court a quo, are summarised below.

The applicant and the respondent were married under an unregistered customary union. They were blessed with four children two of whom were still minors at the time of proceedings in the court a quo. Their union encountered problems resulting in the applicant issuing out summons in the High Court claiming inter alia, an order declaring the customary marriage as being of no force or effect, guardianship and custody of the minor children and distribution of assets that he termed “matrimonial assets.”  In its judgment the court a quo noted that the applicant did not allude to a recognised cause of action in terms of which it was being called upon to distribute the assets or to make the declaratory order that the applicant was seeking. The court further noted that his pleadings were couched as if their marriage was legally recognised and made reference to the irretrievable breakdown of the union and the factors required thereof under the Matrimonial Causes Act, [Chapter 5:13].

Besides denying responsibility for the breakdown of the marriage in her plea, the respondent also disputed the orders sought by the applicant regarding guardianship and custody of the minor children as well as the applicant’s proposed manner of distribution of the assets. She made a counterclaim wherein she confirmed that the parties were married in terms of customary law and that the marriage was not registered. She alleged that the parties were in a tacit universal partnership and that they acquired various assets, both movable and immovable. She also proposed how the assets ought to be distributed. The counterclaim was based on the general law principle of tacit universal partnership and alternatively on the principle of unjust enrichment. She claimed guardianship and custody of, as well as maintenance for the minor children.

In the applicant’s response to the counterclaim he denied that they lived a modern western type of life to warrant the application of general law principles to their union. He insisted that it was their intention that customary law should apply and that the respondent was therefore only entitled to property that she would ordinarily be entitled to at customary law on divorce, such being umai or mawoko property.

At the subsequent pre-trial conference, the issues for determination were captured as being:

“1. Whether there was a universal partnership between the plaintiff and the defendant or an unregistered customary law marriage.

2. Who should be the custodian of the minor children between the parties?

3. In respect of the distribution of immovable assets:

(i)        whether the defendant is entitled to a life usufruct over the immovable property known as 25 Coucal Drive, Mandara, Harare; and

(ii) 	whether she is entitled to a half share in the property known as 2 Yardley Close, Chisipite, Harare.

4. In respect of movable properties:

(i) 	Whether or not the defendant is entitled to a stove, a pink lounge    suite and a dining room suite at the farm;

(ii)      Which motor vehicle(s) is the defendant entitled to over and above the Ford Mondeo that the plaintiff has offered;

(iii) 	Is the defendant entitled to maintenance and, if so, in what sum.

5.	It was noted that the Plaintiff is paying school fees and responsible (sic) for the school wear for the minor children and that the plaintiff has agreed that the defendant can retain as her sole and exclusive property all the household goods in Mandara.”

At the commencement of trial and in consideration of the long time that had elapsed since the date of the pre-trial conference, the Judge a quo sought clarification from both parties on the issues for trial. In their response the parties recast the main issues as:

“1. 	Whether or not the defendant is entitled to a share of the property acquired during the existence of the unregistered customary law union in terms of a tacit universal partnership or alternatively, unjust enrichment.

2. 	The quantum of maintenance payable in respect of the three children born of the union.

3. 	Whether or not the defendant is at law entitled to maintenance and, if so, the quantum thereof.”

After a full trial, on 23 February 2017 the court a quo awarded custody of the minor children to the respondent with the applicant having rights of access. It also ordered the applicant to pay maintenance for the minor children, retain them on his medical aid and continue to pay school fees and other obligatory school requirements. It further distributed the movable property and immovable assets. It awarded “all household goods and appurtenances” at the Mandara property to the respondent except for a Sony radio which was awarded to the applicant. It awarded two motor vehicles, two tractors and one-disc harrow to the respondent. The applicant was ordered to repair and service the two motor vehicles within sixty days of the judgment so that the respondent would receive them in a good and functional state. The applicant was granted the option of paying the respondent the value of the farm equipment stated above unless the defendant elected to retain it.

With regard to the immovable properties the respondent was awarded a 25 percent share in the Chisipite property with the applicant retaining a 75 percent share thereof. The applicant was also granted the option of buying out the respondent’s 25 percent share.

Aggrieved, the applicant noted an appeal on 7 March 2017. He however failed to inspect the record of proceedings when invited to do so in accordance with the rules. This resulted in a letter dated 13 February 2018 from the Registrar advising him that as he had not complied with the requirement of rule 15 (8a) of the Supreme Court Rules, 1964, the appeal was deemed to have been abandoned.  On 28 February 2020 an application for condonation and for the reinstatement of the appeal was filed. It was however withdrawn on 16 June 2020 and ten days later, on 30 June 2020, this application was filed.

THIS APPLICATION

It is the applicant’s explanation that he fell on hard times financially and failed to meet his obligations to his legal practitioners with the result that the record of proceedings was not inspected. His financial circumstances remained dire until early this year when he was able to engage legal practitioners. In his affidavit the applicant “concede(s) that the delay in seeking condonation has been inordinate especially when one has regard to the time when (my) appeal was deemed abandoned and the making of (my) application …” The application that was filed on 28 February 2020 had to be withdrawn as the Notice of Appeal was invalid. He also averred that due to his financial problems he was unable to meet some of his obligations to the children and to the respondent.

The applicant further averred that he had made the application with the bona fide intention to pursue the appeal with a view to having the judgment of the court a quo reversed. Furthermore, that his intended appeal raises crucial points of law and that the respondent will not be prejudiced in any significant way if the application is granted.

The application is opposed. The respondent contends that the applicant has approached the court with dirty hands because he has not complied with an extant Maintenance Order as a result of which he now owes RTGS$76 063.95. The Maintenance Order was issued on 30 June 2016 by the Maintenance Court. It required him to deposit certain amounts of money into the respondent’s bank account each month. The respondent also contends that the applicant has also not paid maintenance or provided medical aid cover as ordered by the court a quo, for the minor child. (Presumably, the other child has since reached majority leaving only one child who is still a minor) It is urged that this Court ought therefore to deny him audience.

The respondent averred that sometime in February 2020 she, through her legal practitioners, sought a meeting with the applicant for the purpose of discussing outstanding payments. Instead of honouring his obligations the applicant then suddenly sought to pursue his long lapsed right of appeal by filing the application of 28 February 2020. In opposing that application, the respondent raised several issues including the defective nature of the application as well as the defective Notice of Appeal. Despite the pointing out of these defects, the applicant persisted with the application only to withdraw it at the hearing on 16 June 2020. It is the respondent’s contention that this application has been made in bad faith and ought not to be granted as it is of material prejudice to her rights granted in accordance with the judgment of the court a quo.  Her interests in finality of litigation will be seriously prejudiced.

The respondent also contends that the application is without merit for the further reason that the explanation for the delay is inadequate and unreasonable and that the applicant seeks to argue on appeal an entirely different case to that in the court a quo. The application, so she contends, is intended solely to delay finalisation of the matter.

DIRTY HANDS

On the papers placed before me it seems  that the respondent has not satisfactorily established that the applicant has approached the court with dirty hands on account of having failed to make payments as ordered of him in a court order. I say so because the applicant has attached to his answering affidavit documents that tend to show that he made payments. It seems to me therefore unsafe, on the basis of the papers that are before me, to determine this application on this preliminary issue that could have been dispositive of the matter. I will thus dismiss the point in limine raised and proceed to consider and determine the application on the merits.

THE APPLICABLE LAW TO APPLICATIONS OF THIS NATURE

The requirements that the court must consider in applications of this nature are well settled. These are, in the main, the extent of the delay in noting the appeal; whether a reasonable explanation for the delay has been satisfactorily established by the applicant and whether there are reasonable prospects of success in an appeal against the decision of the court a quo.

APPLICATION OF THE LAW TO THE FACTS

It is common cause that the delay in this matter is inordinate. The applicant admits as much. The judgment of the court a quo was rendered on 23 February 2017, some three years and five months ago. The appeal that had been noted timeously was deemed abandoned for applicant’s failure to inspect the record of proceedings. The applicant blames it on financial stress, indicating that he was not able to pay his legal practitioners who would have inspected the record of proceedings and thereby avoided the fate that his appeal consequently suffered. The first application that the applicant filed with a view to “pursue” his appeal was made on 28 February 2020, some two years after the Registrar’s letter advising him that the appeal was deemed to have been abandoned.

No indication is made of what steps he took during the two-year period to show his desire or intention to pursue the appeal. The respondent would thus have had every reason to believe that the matter was now at rest.

The applicant made bare averments that amount to no explanation at all by stating that he had no funds. He did not supply any additional information explaining his financial circumstances and when and how such funds were eventually secured during the material period. It was incumbent upon him, in his quest for an indulgence from the Court, to give more than mere averments that lack of funds prevented him from approaching the Court timeously. He ought to have taken the Court into his confidence. He does not state what steps he took to safeguard his interests in the two-year period during which he was aware that his appeal had been deemed abandoned.

The application that he then filed on 28 February 2020 was made a cumulative three years after the judgment that he intends to appeal against. He also persisted with the application despite having the defects in it pointed out, only to withdraw it months later at the hearing on 16 June 2020. It thereafter took him another ten days to file this application and the cause for this delay is unexplained. This application is thus filed three years and five months after the judgment of the court a quo.

An examination of the documents filed by the respondent tends to lend support to the respondent’s contention that the applicant was only prompted into action by the demands made on him, on her behalf by her legal practitioners at a meeting held on 7 February 2020. The meeting was held at the respondent’s legal practitioners’ behest and they followed it up with a letter dated 10 February 2020 addressed to the applicant. The letter reads in greater part:

“We thank you for our meeting on Friday 7 February 2020.

We confirm that we discussed the following, (i) payment of outstanding Peterhouse School fees, (ii) payment of outstanding maintenance arrears in the sum of $69 713.95 (which you dispute the figure), and (iii) your compliance with the terms of the High Court judgment.

As advised as a priority, you must pay the Peterhouse school fees. We put it on record that you undertook to do this by Tuesday 18 February 2020.

As further discussed the appeal was dismissed as per the letter dated 13 February 2018 we handed over to you, so there is no basis why you should fail to comply with the High Court judgment.

We trust that you will pay the school fees, thereafter we will discuss on how to finalize the outstanding issues as per the maintenance order and High Court judgment.

We look forward to hearing from you on or before 18 February 2020.”

Before the end of February 2020 the applicant filed the application which was later withdrawn as stated earlier. By implication, his contention is that this is when his financial circumstances changed for the better and he managed to secure the services of his legal practitioners, that is, some three weeks after the meeting with the respondent’s legal practitioners. In the absence of a detailed explanation by the applicant, the probabilities tend to favour the respondent’s contention that the explanation that the applicant has purported to proffer for the delay must be found to be inadequate and unsatisfactory.

The applicant makes reference to correspondence that he says was addressed to him by his legal practitioners about their inability to act on his behalf. The correspondence is not attached. The applicant’s explanation as to the cause of the failure to inspect the record of proceedings is not supported by any supporting affidavits from his legal practitioners. The applicant was represented in the court a quo by the same legal practitioners who filed the present application on his behalf. In Senwork Timbers (Pvt) Ltd v National Railways of Zimbabwe HB171/15 the court commented:

“Applicant gave lack of funds as the reason for the failure to act timeously. The applicant does not explain how it lacked funds when it was expected to act and how it eventually managed to source funds to file the application for condonation belatedly. The applicant’s legal representative conceded that there were gaps in the explanation of the financial constraints faced by the applicant …”

In Moon v Moon HB94/05 the court stated:

“The excuse given by the applicant is one of poverty. The applicant’s funds dried up. The applicant’s legal practitioners did not renounce agency. This financial dilemma was not conveyed to the respondent or his legal practitioners. No extension of time was sought by the applicant. This excuse was only raised ex post facto. It was foolhardy on the part of the applicant’s camp to ignore the option of order 32 rule 236(3), supra, available to the respondent. How was the respondent expected to know that the inaction within the required one month was occasioned by poverty and not abandonment of the matter? The only inference to be drawn is that the applicant knowingly and deliberately refrained from setting the matter down or filing an answering affidavit. He knowingly acquiesced in the judgment being granted against him. He ignored the provisions of order 32 rule 236(3) at his own peril. He was after all, legally represented all along – Deweras Farm (Pvt) Ltd v Zimbank 1997 (2) ZLR 47b(H). …”  (the underlining is added)

It seems to be too much of a coincidence that after a long period of three years after the judgment is rendered and barely three weeks after being asked to comply with the judgment, the applicant, all of a sudden, came into funds. This is compounded by his reticence on the details of his alleged financial stress coupled with lack of supporting affidavits or correspondence from his legal practitioners to the averments that he made regarding his relationship with them at the material times.

As regards prospects of success of the intended appeal the following submission is made in the respondent’s heads of argument:

“The applicant now seeks to change the nature of his case entirely on appeal. It is now argued that the basis upon which the choice of laws should have been determined ought to have taken into account the polygamous nature of the applicant’s marriage. Needless to say, this was clearly not the case made before the court a quo. The judgment is clear that the applicant advanced no real basis to defeat the application of general law at that stage.

The applicant only referred to the existence of the second wife to attempt to defeat the respondent’s claim to the Yardley Close, Chisipite property. This is clear from page 16 of the judgment …” (Underlining added)

The excerpt from page 16 of the judgment referred to in the written submission above reads as follows:

“The plaintiff’s stance was that the defendant did not contribute anything and so she should not get any share. He also stated that if the defendant insisted on the existence of a partnership then such partnership should include the second wife as the second wife is now staying at this property.The plaintiff was however not clear as to when he married the second wife for her to have a meaningful stake in the immovable property acquired in the partnership. If anything I got the impression that he may have married the second wife after the acquisition of the properties and so her living in the house should not unduly interfere with the defendant’s entitlement as a result of her contribution as a partner. The recognition of the defendant’s contribution is also based on the duration of the partnership.” (the underlining is added)

The Notice of Appeal attached to this application reflects the grounds of the intended appeal as follows:

“1) The Court a quo erred in finding that the dispute between the parties would be regulated by general law principles when the appellant was in a polygamous unregistered customary law union, an institution which is alien to and against the public policy  of Roman Dutch law – which is the basis of the general law of Zimbabwe.

2) The court a quo erred in distributing the property of the spouses as if the marital union involved two persons when in actual fact all distribution was supposed to be done while factoring the existence of the second wife in the appellant’s life.

3) The court a quo erred in finding that a tacit universal partnership had existed and subsisted between appellant and respondent from the time of contracting the unregistered customary law union to the time of the court dissolving it when in the intervening period the appellant had contracted another customary law union which would have the effect of terminating any exclusive partnership which already existed.

4) The court a quo erred in awarding the defendant a portion of the immovable property at No. 2 Yardley Close, Chisipite, Harare when the property was registered as the sole property of the appellant and at the time of dissolution of the parties union, the appellant resided there with his second wife.”

The relief that the applicant seeks therein is stated in the following terms:

“1) That the appeal succeeds with costs.

2)   That paragraphs 6,7,8,9,10 and 11 of the judgment of the court a quo be set aside and in their place be substituted the following:

‘6. The defendant shall be awarded all the household and appurtenance goods at 25 Coucal Drive, Mandara, Harare except for the Sony radio which shall be awarded to the plaintiff.

7.  All other claims of the defendant are dismissed.’”

The applicant’s appeal is thus against the judgment of the court a quo in so far as it relates to the distribution of the movable and immovable properties. He has no qualms with the judgment in relation to custody, his rights regarding access, payment of maintenance, provision of medical aid and payment of school fees and other obligatory school requirements. What is also clear on a perusal of all the four grounds of appeal is that the appeal is predicated upon an alleged “polygamous unregistered customary law union.”

It is clear from a perusal of the judgment of the court a quo that that was not the case that the court a quo was tasked to determine. Neither were facts placed before the court a quo for it to determine the issues that he now seeks to raise on appeal. A perusal of the court a quo’s judgment shows that he sought the following:

“1. An order declaring the customary law marriage as of

no force or effect;

2. guardianship and custody of the minor children and

3. a distribution of assets he termed ‘matrimonial assets’”

Notably, the issue of a determination germane to a polygamous unregistered customary union does not feature.

Furthermore, the issues that were crafted by the parties at the commencement of the trial for determination by the trial court, as quoted earlier in this judgment, do not reflect such an issue. In fact, besides the quantum of maintenance for the children and the respondent’s entitlement to maintenance, the only other issue was stated to be “(W)hether or not the defendant is entitled to a share of the property acquired during the existence (subsistence) of the unregistered customary law union in terms of a tacit universal partnership or alternatively, unjust enrichment.” (the underlining is added).

It is trite that a lower court cannot, on appeal, be said to have erred or misdirected itself on matters that were not before it for its determination.  In Austerlands (Pvt) Ltd v Trade & Investment Bank Ltd & Ors SC92/05 CHIDYAUSIKU CJ stated as follows:

“There is no basis for challenging the court a quo for not having determined something that was never placed before it to determine.”

In my view, while all factors must be considered cumulatively, in this matter the attempt to argue a new case on appeal, significantly tilts the balance. It would on its own be sufficient ground for a finding of no good cause shown, such being a requirement of rule 70.

When regard is had to the cumulative effect of the inordinate delay, the paucity and improbability of the explanation for it and the lack of prospects for success, the principle that there must be finality to litigation immediately becomes pertinent. The prejudice to the respondent cannot be gainsaid. Her quest to have the applicant comply with the court orders seems to have “earned” her this new found zeal by the applicant to try and have the judgment rendered almost three and half years ago to be set aside. During most of the intervening period when no pressure was put on him to comply, the applicant was content to sit back and was not proactive in the pursuance of his alleged desire to appeal.

It is my view that this application lacks merit. It cannot succeed. Costs will follow the cause. With regard to the level of costs, the respondent prays for a dismissal with costs on the legal practitioner and client scale.  Attractive though this may seem, it is my view that this is not a case that warrants a punitive order of costs.

Accordingly, the following order is made:

The application is dismissed with costs.

Gill Godlonton & Gerrans, Applicant’s legal practitioners

Kantor and Immerman, Respondent’s legal practitioners