Court name
Supreme Court of Zimbabwe
Case number
SC 19 of 2003
Civil Application 156 of 2003

Mabeka v Mabeka (56/03) (SC 19 of 2003, Civil Application 156 of 2003) [2003] ZWSC 19 (23 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 19
















Judgment
No. SC 19/03


Civil
Application No. 156/03








ELIAS
MABEKA v HILDA MABEKA








SUPREME
COURT OF ZIMBABWE


HARARE,
JUNE 24, 2003








Z
M Kamusosa
,
for the applicant





Miss
M
Gwaunza
,
for the respondents





Before
CHEDA  JA, In Chambers, in terms of Rule 32 of the Supreme
Court of Zimbabwe Rules.









The Applicant and the respondent
were granted a divorce order in a judgment of the High Court dated 26
November, 2001.





He
perused it and was not happy with the Court’s finding.






On the 30th
May, 2003 he instructed his legal practitioner to note an appeal.
The legal practitioner advised him of the need to apply for
condonation
for the late noting of the appeal. This is the
application now before me.





The
application is opposed by the respondent. I said the parties could
either come and argue in chambers or submit written heads
of
argument. They opted to submit written heads.





In
his affidavit the applicant says after the trial of the divorce
action judgment was reserved. His legal practitioner promised
to
inform him when judgment was to be delivered. He kept checking but
was advised that it was not yet out. His legal practitioner
then
promised to write him a letter as soon as the judgment was out.





He
says because he was unemployed he found that his daily expenses in
Harare were becoming unbearable hence he opted to live at
his rural
homestead for a greater part of the time.






Between
February and March 2003 he phoned the office of his legal
practitioner and spoke to a lady called Dorothy and advised her
to
inform Mr Kamusasa of his new address in the event that he would
write letters. Although he requested the lady to check in his
file
whether there was anything for his attention she advised that
Kamusasa had gone to Bindura, she could not locate the file as
she
was new but promised to convey the message to Kamusasa. He said it
was after his daughter had been served with a warrant of
execution
between 20 and 21 May 2003 that she notified him and he immediately
went to see his legal practitioners on 27 May 2003.
He was advised
that a letter had recently been posted to him and was shown a copy.
He was also told that several letters had been
written to him about
the judgment but he said he had not seen the letters.





On scrutinizing the copies he
noticed that they had been sent to the wrong address which he had
since closed at the end of 2002.
He was not happy with the sharing
of property on the judgment and maintenance. He requested more time
to study the judgment and
discuss details with Kamusasa. That was
when he was advised that if he wanted to appeal it would be out of
time. He said since
he is not employed, if the house was sold he
would be reduced to destitution and haunted by the maintenance order
which he will not
be able to fulfil.










In
De
Kusaba-Dabrowski & Uxor

v
Steel N.O.
1966 RLR 60(A) the Appellate Division laid down broad principles
which the court may take into account. Some of these are:




(1) The extent of the delay in
failing to note the appeal;


(2) The
reasonableness of the explanation for the delay;


(3) Whether
the litigant himself is responsible for the delay;


(4) The
prospect of success of an appeal, should the application be granted;


The
possible prejudice to the respondent should the application be
granted.






In Kombayi
v
Berkhout
1988(1) ZLR 53(3) the following were repeated:



(a) the
extent of the delay;



(b) the reasonableness of the
explanation for the delay;


(c) the
prospects of success.






The above
three principles were repeated in
Jensen
v
Acavolos,
1993 (1) ZLR 216 (S).






In order to
determine the matter on the basis of the above principles one has to
look at the information given in the affidavits
as well as the heads
of argument and the judgment of the court

a quo
.






The
applicant seeks to attribute the blame to his legal practitioners as
he says in his founding affidavit that the honourable court
should
not visit upon him the mistakes of his legal practitioners or anyone
in their employment.





In
my view he, the applicant, is, to a large extent, to blame.





He
says in his affidavit that he decided to go and reside at his rural
homestead. When his wife tells us in her opposing affidavit
that she
often met him in Harare on several occasions since the trial, he
makes a general denial, but goes on to say in his answering
affidavit
he resided at Mabvuku during the period in issue. Living at the
rural homestead and residing at Mabvuku are not the same
thing, He
admits that he often visited his children who occupied the cottage as
the main house is rented. He does not explain the
fate of the letter
addressed to him at No 20, Cleveland Road, Greendale on 21 May, 2003.





He
does not explain how the writ was served on the above address but the
letter addressed to the same address was not seen by him
up to the 27
May if it takes only 2 days for mail to reach that address.





I
do not believe that the applicant’s usual known address was only
Box 3, CH 198, Chisipite, Harare, because the legal practitioner
would also have in his file the address for service of the summons
which cannot be a post office box number.






Respondent
said if the box number is closed the letters sent to it would be
returned.





I
am inclined to believe her. We are not told what action was taken to
establish the fate of those letters and the judgment.





In
his founding affidavit he said if the Greendale home is sold he will
be homeless, yet he tells us also that he was residing in
Mabvuku.





He
also talks of residing in rural Hurungwe without indicating when this
was.






Applicant
says the Greendale house is rented but does not state where he is
currently residing.





He
does not even indicate when he closed the address that his legal
practitioner posted letters to.





He
says it was not necessary to attach proof of closure of a postal box
which the respondent was well aware of, yet this is for
the
information of the court and not the respondent.





Since
this is in the replying affidavit, the applicant should have provided
proof since what he said had been challenged. As applicant
the onus
is on him to prove issues in support of his application, not for the
respondent.





I
now turn to deal with the three main principles and their application
to this case.





THE
EXTENT OF THE DELAY






The
Applicant’s legal practitioner was served with the judgment on 28
January, 2003.





The
founding affidavit was filed without being dated.





The
application for condonation was only filed on 4 June. This is a
delay of five months. The Rules require a period of 15 days.
Five
months is therefore a very long time and would certainly require a
satisfactory reasonable explanation.






THE
REASONABLENESS OF THE EXPLANATION PROFFERED FOR THE DELAY






Appellant’s
explanation is most unsatisfactory and therefore unreasonable.





He
contradicts himself about going to reside at his rural homestead,
then says he was residing at Mabvuku at the relevant time.
He has
clearly avoided proving that he had closed his postal box preferring
instead that respondent should prove that he is not
telling the
truth.





It
is not enough for him and his legal practitioner to tell the court
that the message about the change of address is available
without
filing it. They are well aware that applicant‘s case depends on
their placing before the court all the necessary information
in
support of the application.





If
they appreciated the need to file copies of letters, there is no
reasonable explanation for not filing the message note about
a change
of address which is so important, or the proof that the post box
number was closed.





He
does not say when the postal box was closed or why he did not give
his legal practitioner the new address when they arranged
that the
legal practitioner should write when judgment becomes available.





THE
PROSPECT OF SUCCESS





The
applicant
attacks
the judgment on the basis that the court
a
quo
placed too much
weight on the respondent’s evidence of direct and indirect
contribution towards the acquisition of the matrimonial
property
which was uncorroborated, and erred by not making a finding on
credibility.






The
judgment shows that the court made a clear finding against the
applicant, on page 3, that defendant was not being truthful with
this
court, that he does not dispute that plaintiff did assist in the
construction of the Greendale house and cottage, Page 7, that
he
first says her contribution was not as much as she makes out, he does
not dispute that she assisted in the business ventures in
Dommboshawa, he does not dispute the purchase of the two
motor-vehicles, Page 7, that it is not disputed that she contributed
immensely
in the acquisition of the immovable properties and the
building of the businesses, Page 8. The court also found that her
contribution
was extensive and that on the evidence before it
applicant’s contribution was greater than hers.





These
are findings based on the evidence led. All Applicant could say was
that he did not agree that her contribution was as much
as she made
it out. There is no problem with that because the court concedes
that his contribution was greater. The court however,
still
determined that she should get 45% of the value of the properties.
This was a discretionary decision.





I
see no fault with this conclusion and I do not believe the appeal can
succeed on that basis.






The fact that he sold his
previous property to acquire the stand at Greendale is not disputed.
But it is the contribution by the
respondent which the court found to
be extensive. Applicant did not dispute the various contributions
she made but simply contended
that it was not at the level she made
out. In the absence of any challenge to the various things she did
as her contribution the
evidence indicates a definitely extensive
level of contribution as the court found.







The court exercised its
discretion as to the proportions she awarded, and there is nothing to
suggest that she exercised it improperly.






The
applicant’s position that he is not employed and cannot afford to
pay her anything strengthens the need to sell the house as
he is not
in a position to pay her off. That cannot be a basis for depriving
her of her share.







On the maintenance order the
applicant revealed that he was making large payments of $16 500 per
term for the benefit of another
child and maintaining the house and
its expense for this child. The court correctly found that the
applicant was not being truthful
as he could not afford to pay $16
500 per term and rental for $2 500 per month if his income was only
$7 500 per month. In any case
he contradicts himself in saying he
maintains the Greendale house and then says it is rented out.







He said he was left with $70
000 of the package he got from his former employment. The court was
correct in concluding that he
could afford to pay $7 000 per month
for maintenance. He is also able to work and has not said why he is
not working.






He
has not disputed that he does piece work or contracts as a builder.





In
conclusion I find that while it may appear that the applicant did not
delay after the judgment was brought to his attention on
the 27 May
2003, the allegation that he had not been aware of it up to that date
is either untrue, or if it was true, he was at fault
in not making
proper arrangements with his legal practitioner about communication
with him. When they arranged that the legal practitioner
write to
the applicant, he should have advised that his address had changed.






Even if that alone would not be
enough ground for refusing the application, the application would
still fail on the merits. His
evidence was found to be untrue, The
respondent’s evidence on her level of contribution in the
acquisition of the Greendale house
was accepted by the court.
Applicant was untruthful about his income. It was found that he can
afford the maintenance claimed.
He says he has no money to pay off
the respondent, a point which shows that the property needs to be
sold to that respondent can
get her share.






I
am satisfied that the appeal will only result in some inconvenience
to the respondent and a further delay in getting her share.





Respondent
asked for punitive costs to be awarded against the applicant.





I
am not satisfied that I should make such an order on a case like
this.





The
application for leave to note an appeal out of time is dismissed with
costs.






Nduna &
Partners
,
applicant's legal practitioners


Wintertons,
respondent's legal practitioners