HIGH COURT OF ZIMBABWE
HARARE, 13 and 26 February 2015.
M Mafo, for the applicant
C Nhemwa, for the respondent
UCHENA J: The applicant and the respondent married each other in 1997. They married in Lebanon, according to Islamic Religious Law of the Jaafari Confession. They divorced in terms of a release contract dated 16 August 2012. They are both Lebanese but both stayed in Zimbabwe before divorce and the respondent still does. The applicant and the children born to the marriage now stay in Lebanon. The applicant is however not staying with her children as they stay with their step mother the respondent’s new wife. The applicant was aggrieved by the respondent’s placing of the children under his new wife’s custody and her being denied access to them.
The applicant relying on a document purporting to annul the original release agreement on terms which had not yet been implemented as at 31/3/2014, applied to this court for an order granting her custody of their minor children, namely
N Mokbel born 5 October 1998, O Mokbel born 30 March 2001, P Mokbel born 20 November 2004 and Q Mokbel born 7 September 2007.
Mr Nhemwa for the respondent submitted that this court has no jurisdiction and cannot hear this application because the document being relied on by the applicant was fraudulently obtained and was appealed against. Ms Mafo for the applicant submitted that the appeal noted by the respondent is not valid because of the way it was worded. Mr Nhemwa’s response which was prompted by the court asking the parties to address it on the effect of s 25 of the Civil Evidence Act (Chapter 8.01) on this case, was that this court cannot take judicial notice of foreign law, and cannot therefore without hearing evidence to prove that foreign law determine whether or not the appeal referred to is valid or not. Section25 of the Civil Evidence Act [Chapter 8:01] provides as follows;
- “(1) A court shall not take judicial notice of the law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe.
- (2) Any person who, in the opinion of the court, is suitably qualified to do so on account of his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or is entitled to act as a legal practitioner in that country or territory.
- (3) In considering any issue as to the law of any foreign country or territory, a court may have regard to—
(a) any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form; and
(b) any written law of that country or territory; and
(c) any decision given by the High Court or the Supreme Court as to the law of that country or territory.
(4) The law of any foreign country or territory shall be taken to be in accordance with a finding or decision mentioned in paragraph (a) of subsection (3), unless the finding or decision conflicts with another such finding or decision on the same question.
(5) For the purposes of paragraph (a) of subsection (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe.”
Section 25 (1) clearly bars this court from taking judicial notice of foreign law, or presuming that the law of another country is the same as the law of Zimbabwe. Mr Nhemwa is therefore correct when he says we cannot presume that Lebanese notices of appeal should be done in the way they are done in Zimbabwe. It cannot therefore be said without proving Lebanese Law that the notice of appeal is invalid. Section 25 (3) of the Civil Evidence Act prescribes the procedure a party should follow in proving foreign law. In spite of that clear procedure Ms Mafo did not take her allegations any further besides insisting on the applicant’s application being heard and granted as custody issues are the same irrespective of the foreign law aspects raised by Mr Nhemwa.
The need to prove Lebanese law was very important in this case because of the type of marriage the parties entered into and the law applicable to both divorce and custody in Lebanon which is faith based and has specific provisions on who between the spouses should have custody. This court cannot hear and determine a case based on foreign law, before that foreign law which it must use to determine the case has been proven. We are in this case dealing with existing Lebanese court orders based on Islamic law which this court can only deal with after the applicant leads evidence on it. Proceeding without such evidence as suggested by Ms Mafo for the applicant is unlawful and leads to the danger of contradicting existing orders of foreign courts granted by judicial officers who are fully aware of the import of their country’s laws. The pitfalls are demonstrated by the following;
- The marriage is in terms of Islamic Religious Law in Lebanon- Jaafari Confession which the applicant did not prove to this court.
- The invalidity of the respondent’s appeal has not been proven before this court. It is insufficient to rely on the respondent’s wording to attack the validity of process based on foreign law.
- Even if the appeal had been proved to be invalid the issue of custody had to be proved to not have been implemented at the time the annulment of the release agreement is alleged to have taken place. The fact that the respondent is already exercising custody through his new wife seems to indicate that custody is not an outstanding issue.
- Part of the contract on page 15 of the record states that “this contract with all what relates or derives there from, as issues in Lebanon or the State of Zimbabwe, shall be subject to the Lebanese Law, and more particularly the Islamic legal rules- the Jaafari Confession, regarding divorce and its effects,” which this court cannot take judicial notice of.
- The Release agreement on p12 of the record provides for the “divorce execution, according to the texts of the Islamic Law in Lebanon- Jaafari Confession only, while excluding any other rules and laws, including the State of Zimbabwe”. This means the application of Zimbabwean laws is specifically excluded by the Release Agreement. The applicant’s counsel, should therefore have seriously considered our own s 25 referred to above and this clause before recklessly bringing this application and pursuing it to a hearing before this court without complying with s 25 of the Civil Evidence Act.
- On the issue of custody the release agreement specifically states on p 12 that; “the first party (respondent) is the compulsory tutor of the children”, and Annexure B on p 37 describes the respondent as the children’s “mandatory custodian”, suggesting that custody under Islamic law is prescribed by the law. This means evidence had to be led on the applicable foreign law.
- The alleged annulment agreement, document on p 18 specifically states that “each of the two parties has the right to resort to the competent court in Lebanon or abroad, to preserve their rights and consider the terms of the agreement that have not been implemented as if they didn’t exist”,--. The respondent has been exercising custody rights as demonstrated by the children being in his new wife’s custody. It therefore seems this part of the agreement has already been implemented and can therefore not be covered by the alleged annulment agreement.
I am therefore satisfied that the applicant’s application cannot succeed. Mr Nhemwa submitted that the application should be dismissed with costs de bonis propiis because this court does not have jurisdiction to hear this application and this was brought to the applicant and his legal practitioners through the respondent’s opposing affidavit. It is not correct that this court does not have jurisdiction, as it can subject to the foreign law being proven to it, exercise jurisdiction. Costs are in the court’s discretion. I am in view of the number of similar cases I have dealt with of the view that the issue of the need to prove foreign law is not fully appreciated by many legal practitioners. It therefore seems to me that the applicant’s legal practitioner did not deliberately set out to ignore the effect of foreign law on this application but merely failed to appreciate its effect when the court asked her to address her mind to it. The effect of s 25 on foreign law was not raised in the respondent’s Heads of Argument. The respondent’s legal practitioner was himself not clear on that, law until the court pointed out s 25 of the Civil Evidence Act and its effect on the proceedings. I will therefore award the respondent costs at the ordinary scale.
It is therefore ordered as follows;
- That the applicant’s application be and is hereby dismissed.
- The applicant shall pay the respondent’s costs.
MessrsScanlen& Holderness,applicant’s legal practitioners
Messrs C Nhemwa& Associates,respondent’s legal practitioners