Court name
Supreme Court of Zimbabwe
Case number
SC 49 of 2004
Civil Appeal 290 of 2002

Latif v Latif (90/02) (SC 49 of 2004, Civil Appeal 290 of 2002) [2004] ZWSC 49 (08 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 49


















DISTRIBUTABLE
(45)


Judgment
No. SC 49/04


Civil
Appeal No. 290/02










HALIMA
LATIF v MUHAMMED FEROZ LATIF










SUPREME
COURT OF ZIMBABWE



SANDURA JA, MALABA JA, GWAUNZA JA


HARARE,
MARCH 8 & SEPTEMBER 9, 2004











A Ebrahim, for appellant





No
appearance for the respondent










MALABA
JA: This is an appeal from a judgment of the High Court dated 16
October 2002 in terms of which it declined jurisdiction
for a decree
of divorce and ancillary relief against the respondent.






The
appellant was born and bred in Zimbabwe. On 30 August 2001, she
married the respondent in Harare. The respondent is a citizen
of
Pakistan. He entered this country in August 2001 and got
employment. The marriage relationship did not yield the desired
happiness
to the parties resulting in the appellant instituting
divorce proceedings on 25 June 2002, one year after the respondent
acquired
residence in the country. At the time she instituted
divorce proceedings, the appellant expected respondent’s child who
has since
been born.






The
declaration alleged in paragraph 4 that:





“The
defendant was born in Pakistan and came to Zimbabwe in August 2001,
and has since been residing in Zimbabwe and he now regards
Zimbabwe
as his permanent home. The defendant is domiciled in Zimbabwe and
presently lives and works in Zimbabwe.”





The
averments on respondent’s domicile were supported by an affidavit
of evidence deposed to by the appellant. The respondent
did not
enter appearance to defend, indicating by letter written on his
behalf by his legal practitioner, that he had no intention
of
opposing the appellant in her quest for the termination of the
marriage relationship. The matter was placed before the High
Court
as an unopposed application.






The
learned judge before whom the application was placed during motion
proceedings, declined to grant the appellant the relief she
sought on
the ground that, she had not established respondent’s matrimonial
domicile to confer the court with jurisdiction. His
reasoning was
that the appellant had to show that, the respondent had resided in
Zimbabwe for a period of one year or more and had
the intention of
remaining in the country permanently to show that he had acquired
domicile of choice. He made reference to s 3(3)
of the Immigration
Act requiring a person to have remained in Zimbabwe for a continuous
period of ten years before he can acquire
domicile in the country.






After
referring to authorities on the requirements for matrimonial domicile
the learned judge said:







“It is clear from the foregoing
that cujus in every case had had his place of abode in this
country for a period of time in excess of a year and had manifested
the idea of
some permanence by what each of them had done. In the
present case the defendant arrived in August 2001 and on 30 August
2001 married
the plaintiff and from that date there has been
persistent antagonism between the parties. The defendant is being
employed but
there is nothing on the papers before me to show that he
has some financial stake in this country.”






In Eilon v Eilon 1965
(1) SA 703 (A) at p 721A POTGIETER AJA said that:







“The onus of proving a domicile
of choice is discharged once physical presence is proved and it is
further proved that the de cujus had at the relevant time a
fixed and deliberate intention to abandon his previous domicile, and
to settle permanently in the country
of choice.”













In
the absence of any denial by the respondent of the facts alleged in
paragraph 4 of the declaration supported by the affidavit of
evidence
deposed to by the appellant, the learned judge had no basis upon
which to refuse to accept as a fact proved that respondent
took
residence in Zimbabwe with the intention of making the country his
permanent home. That he had taken actual residence in the
country
was clear from the papers. The fact of his intention to make
Zimbabwe a permanent home was also established through the
averments
in the founding affidavit the contents of which were not denied by
the respondent. If his residence in Zimbabwe was accompanied
by a
different state of mind from making the country his permanent home
the respondent would have disclosed at the time he received
the
papers that at the material time he regarded Pakistan as his
permanent home.






The appellant had discharged
the onus on her by proving the facts required to establish
matrimonial domicile for the purposes of conferring jurisdiction upon
the court.
There is no requirement for the purposes of matrimonial
domicile that the plaintiff should show that the residence of the
defendant
was of a certain duration as is true with domicile for
immigration purposes.






In Fenner v Fenner
1943 SR 188 TREDGOLD J (as he then was) at p 191 said:





“The
fact that such residence may terminate abruptly at the will of
another cannot alter its actuality. The requirements of the
intention
and the residence itself must not be confused. The person
seeking to establish domicile is not to prove that the residence he
has
established is in fact permanent. To ask this would be to
demand the impossible for who can say what the future may hold and
what
circumstances may intervene to terminate his residence. He has
simply to show that he is resident and that that residence is coupled
with the intention permanently to reside.”










Once the facts the existence of
which showed acquisition by the defendant of matrimonial domicile
were established, the appellant
was entitled to the determination of
her claim by the court a quo.






The appeal succeeds.
The decision of the court a quo is set aside and in its place
is substituted the following:





“It
is ordered that:







1. A decree of divorce be and is
hereby granted.







2. Sole custody and sole
guardianship of the minor child S.L. (born [day/month] 2002) be
awarded to the Plaintiff.






3. Defendant
shall have all rights of reasonable access to the child at reasonable
times.






4. Plaintiff
is entitled to sign the passport application forms in her capacity as
sole guardian.






5. There
will be no order as to costs.”

















SANDURA  JA: I
agree.


















GWAUNZA
JA: I agree.



















Ali Ebrahim, appellant's
legal practitioners