Chiwenga v Mubaiwa (Civil Appeal SC 26 of 2020; SC 86 of 2020) [2020] ZWSC 86 (25 June 2020)

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 REPORTABLE

(75) CONSTANTINE GUVHEYA DOMINIC CHIWENGA v MARRY MUBAIWA SUPREME COURT OF ZIMBABWE GWAUNZA DCJ, GARWE JA & BHUNU JA HARARE: MARCH 16, 2020 AND JUNE 25, 2020 L. Uriri with W. T. Manase, for the appellant S. M. Hashiti with W. Nyamakura & O. Mbuyisa, for the respondent GWAUNZA DCJ: GARWE JA: BHUNU JA: This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo’s order awarding custody of the parties’ three minor children to the respondent upon the separation of the parties. The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties’ disputed properties. Although the parties were also quarrelling about the respondent’s right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant’s favour. That issue consequently falls away.

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 The respondent has in turn abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent. CHOICE OF LAW Although the parties were married under customary law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of general law

1. It is convenient that their dispute be regulated and determined in terms of general law because of their sophisticated way of life and ownership of immovable private property. As the concept of private ownership of immovable property is unknown at customary law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than general law. Thus, the appropriate applicable law in this case is the general law. See Mandava v Chasekwa2 BRIEF SUMMARY OF THE CASE. The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest Tendai Dominique Chiwenga is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively. 1 Section 3 (b) of the Customary Law and Local Courts Act [Chapter 7 : 05] 2 2008

(1) ZLR 300 at 303G

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 During happier times the parties resided at their matrimonial home situate at number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects and other paraphernalia. It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as ‘ gupuro’. In her papers before this Court and in para 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant’s wife. The divorce issue therefore appears not to have been resolved. The appellant has nevertheless now issued summons against her in the court a quo under case number HC 9837/19 claiming custody of the three minor children in terms of s 4 of the Guardianship of minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage. The current proceedings and the parties’ relationship are severely strained, acrimonious and discordant. This is mainly because of the respondent’s arrest on multiple charges of attempted murder of the appellant, fraud, money laundering and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning 3 weeks from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession and administration

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 of her personal property and effects. At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent’s arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects and other paraphernalia. His conduct in this respect was perfectly lawful and undisputed at the material time. On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request . Upon her release from prison on bail she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home. The same scenario played out when she sought access to Orchid Gardens which was also guarded by state security guards. They also denied her access to the premises. She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant. THE RESPONDENT’S CLAIM A QUO Under the circumstances the respondent submits that she had no option but to approach the appropriate court on an urgent basis for relief. To that end, she lodged an urgent application in the court a quo for a ‘provisional spoliation order’ directing the appellant to

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 grant her the following interim relief on a prima facie basis pending the return date for a final

Order

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the 3 minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff with the assistance of the police to execute the court a quo’s order forthwith. In the final order the respondent sought the following relief:

1. That the appellant be interdicted and restrained from interfering with respondent’s use and enjoyment of the matrimonial home and her business premises at Orchid Gardens, pending the conclusion of the matrimonial proceedings under case number HC 9837/19.

2. That the appellant be restrained from removing the 3 minor children of the marriage from the applicant’s custody.

3. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent’s complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children and property. THE APPELLANT’S DEFENCE A QUO The appellant objected to the respondent’s claim that the matter was urgent. He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children’s Court which is specifically conferred with the jurisdiction in terms of s 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart. He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison. The appellant denied having given the guards at the matrimonial home and Orchid Gardens any orders to deny the respondent access to the premises. His submission to the effect that he had no control over the guards was not rebutted.

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 Placing reliance on the South African case of Fraser v Children’s Court, Pretoria North 3, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children. It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At para 3 (c) of his opposing affidavit in the court a quo, the appellant makes the valid point that as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred further that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient. THE COURT A QUO’S FINDINGS AND DETERMINATION. On the basis of the above summation of evidence and arguments the court a quo found that: (a) the matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent, and (b) notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property. The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis: 3 1997

(2) SA 261

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 “1. The respondent ( Constantino) is hereby ordered to restore custody of the minor children namely, Tendai Dominique Chiwenga (Born 4 November2011), Christian Tawanazororo Chiwenga (Born 5 November 2012) and Michael Alexander Tadisiswa Chiwenga (Born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order

2. The respondent ( Constantino) is hereby interdicted and restrained from interfering with applicant’s (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Borrowdale, Harare.

3. The respondent ( Constantino) is hereby interdicted and restrained from interfering with applicant’s (Marry) access to, use and enjoyment of the property known as Orchid Gardens Domboshawa, Harare.

4. The respondent ( Constantino) is hereby interdicted and restrained from interfering with applicant’s ( Marry) access to, use and enjoyment of the motor vehicles, namely Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant’s (Marry) access and or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant’s ( Marry) costs of suit.” GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION Aggrieved by the above order, the appellant appealed to this Court on 10 grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the 10 grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a ‘provisional’ spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the 3 minor children in light of the provisions of s 5 of the Act. APPICATION OF THE LAW TO THE FACTS. Whether the court a quo correctly determined that the matter was urgent

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 As previously stated, the court a quo found that the application was urgent on the basis that it involved the welfare of minor children and that spoliation matters are generally treated as urgent. Placing reliance on the well-known case of Kuwarega v Registrar General and another, 4 the learned judge a quo made a factual finding that the matter was urgent and could not wait in the queue of ordinary cases. It is trite that such a factual finding involving the exercise of discretion can only be upset based on irrationality. See Barros and Another v Chimuponda5. It is common knowledge that minor children are a vulnerable class of persons under the special care of the High Court as their upper guardian. The same applies to spoliation, a remedy designed to avert self-help in a democratic civilized society. The remedy forbids the law of the jungle where survival of the fittest reigns supreme. Thus, the courts will quickly come to the aide of the vulnerable and the weak to restore custody and possession where one is unlawfully deprived of the same by the strong and valiant. In this case the respondent approached the court a quo complaining that she had been unlawfully deprived of the custody of her children and possession of her property by her powerful husband abusing state power. That being the case, the court a quo cannot be faulted for granting her application for an urgent hearing. Doing otherwise would have amounted to abdicating its duty as the upper guardian of minor children and protector of the weak and vulnerable. In any case, an application for spoliation is generally treated as urgent because of the need to stop unlawful conduct pending the determination of the parties’ competing rights. 4 1998

(1) ZLR 188 5 1999

(1) ZLR 58 (S)

Judgment No: SC 86/20 Civil Appeal No: SC 26/20 Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is rightly or wrongly allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application. In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors 6 this Court held that a finding of urgency by a court on its own cannot constitute a substantive ground of appeal. Thus the appeal against urgency was ill conceived and misplaced. The court therefore finds no merit in the appellants’ complaint that the matter was improperly heard as an urgent matter. The court now turns to determine the appeal on the remaining two issues. WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A QUO TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT? Despite the respondent having asked for a ‘provisional’ spoliation order based on a prima facie case, the learned judge in the court a quo went on to grant an interdict which neither party had asked for nor pleaded. The two critical questions to be answered are:

1. Was it competent at law for the court a quo to grant the respondent a final order when her claim was for a ‘provisional’ spoliation order? In any case was the provisional order sought a competent remedy? 6 SC 28/18 at p 8

Judgment No: SC 86/20 Civil Appeal No: SC 26/20

2. What were the parties’ rights of custody of their three minor children at the time of separation? The court now proceeds to deal with the two questions in turn. Whether it was competent at law for the court a quo to grant the respondent an interdict when she had asked for a ‘provisional’ spoliation order? In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court a quo and the respondent’s legal practitioners were labouring under some serious misapprehension of the law in this regard.