Court name
Supreme Court of Zimbabwe
Case number
SC 16 of 2008
Civil Appeal 369 of 2005

Kung v Kung (SC 16 of 2008, Civil Appeal 369 of 2005) [2008] ZWSC 16 (15 September 2008);

Law report citations
Media neutral citation
[2008] ZWSC 16









REPORTABLE ZLR
(16)





Judgment
No. SC 16/08


Civil
Appeal 369/05








DENNIS
GREGORY KUNG v BEVERLEY MARIA KUNG








SUPREME COURT OF
ZIMBABWE


MALABA JA, GWAUNZA JA &
GARWE JA


HARARE, FEBRUARY 5 &
SEPTEMBER 16, 2008








A P de Bourbon SC,
for the appellant





R Y Phillips,
for the respondent









GWAUNZA JA: The appellant instituted divorce proceedings against the
respondent in the High Court. Having considered the issue
of whether
or not the plaintiff was domiciled in Zimbabwe and having found, that
he had adopted South Africa as his domicile of
choice at the time the
divorce proceedings were instituted, the High Court decided that it
had no jurisdiction to entertain the
action. The appellant was
aggrieved at this decision and has now appealed against it to this
Court.







It is not in dispute that even though the respondent raised the
issue of the appellant’s domicile in her plea, this matter was
not
considered at the pre-trial conference stage. The learned Judge a
quo
was alive to this circumstance and proceeded, mero motu,
to consider the matter on the evidence led during the trial. The
learned Judge determined, on the authority of Boswinkel v
Boswinkel
1995 ZLR (2) 59 at p 60, that the court could, on its
own, properly enquire into, and satisfy itself on, the issue of the
plaintiff’s
domicile. I am satisfied that the court a quo
was correct in proceeding in that manner.







Evidence on the question of the appellant’s domicile is for the
most part not in dispute and is aptly summarized in the parties’

heads of argument. The appellant was born and educated in Zimbabwe.
His mother being a citizen of South Africa, the appellant
was able to
obtain a South African passport and the right of residence in that
country. After their marriage in 1999, the parties
initially lived
in Harare. They had certain business interests in Zimbabwe. Apart
from the parties’ concern over the economic
situation in Zimbabwe,
they also wished to have the respondent’s daughter from a previous
marriage educated in South Africa.
To this end the parties proceeded
to purchase a residence in South Africa in 2002, and placed the
daughter in a South African
school. Before that, the appellant had
disposed of all his assets in Zimbabwe and externalised the proceeds.
He acquired other
assets in South Africa and secured employment in
that country. The defendant, did not relocate to South Africa. No
family of the
appellant remained in Zimbabwe and he himself did not
maintain his permanent residence status in Zimbabwe. At the time the
divorce
proceedings were instituted, the plaintiff was already living
in South Africa. It was his evidence that at that time, he was going

“backwards and forwards” between Zimbabwe and South Africa.







It is trite in our law that the court’s jurisdiction in divorce
matters is based upon the domicile of the husband at the time
the
action is instituted. The divorce proceedings in casu were
instituted in January 2003. The disposal of the appellant’s
assets in Zimbabwe, his relocation to South Africa and his
acquisition
of South Africa permanent residence all occurred before
this date. It appears undisputed that the only way the appellant
remained
connected to Zimbabwe was through the few visits to the
country as he traveled “backwards and forwards” between Zimbabwe
and
South Africa.







The learned Judge’s analysis of the evidence before him, and the
conclusions he reached, are contained in the following passage
at p 7 of the judgment:



“The issue before the court is whether the plaintiff has abandoned
his domicile of origin in favour of a domicile of choice.
The
evidence led establishes in the view of this court that the plaintiff
took a deliberate decision to abandon his domicile of
origin in
Zimbabwe in favour of a domicile of choice in South Africa. The
plaintiff did so with the necessary state of mind or
aminus
manendi
as evidenced by his clearly carefully planned disposal of
local assets and assuming that he receives the proceeds thereof in
foreign
currency outside Zimbabwe. He then applied those proceeds
together with the funds that he was able to secure to establish a
residency
outside this country and other assets in South Africa.







It is not in dispute that he secured employment in order
understandably to consolidate his financial well being in South
Africa.
The visits of the plaintiff, if any, to Zimbabwe do not
affect, in the view of this court, the facts of this matter and the
inference
to be drawn from his settled state of mind.”







The learned Judge cited authorities to
support his findings. He quoted from the case of Howard v Howard
1966 RLR (182) p 188, where it is stated that:



“Even if expressions of intention are clear and consistent, they
cannot prevail against a course of conduct inconsistent with
them or
lending to an opposite inference.”







On the basis of this authority, the court a
quo
dismissed the appellant’s express denial of having adopted
South Africa as a domicile of choice.







The court also relied on the dictum in
GRE Insurance Ltd v Chisnall 1982 (1) SA 387(SZ) at p 390 A to
the effect that:



“An intention to reside in a country for a fixed period of
time, or until the happening of some clearly foreseen and reasonably

anticipated event, will not be sufficient, but, if the proper
conclusion from all the circumstances is that the propositus intends

to make his home in a country for an indefinite time, he will acquire
a domicile of choice there notwithstanding a continuing emotional

attachment to some other country, or an intention to change his
residence upon some vague or improbable contingency”.











Mr de Bourbon for the appellant
challenges the findings of the court a quo and argues that the
dictum cited above in Chisnall’s case supra
does not accurately reflect the law of Zimbabwe. He submits that the
law was correctly stated by GARWE J (as he then was) in De Jager v
De Jager
1998 (2) ZLR 419 (HC), to the effect that a domicile of
choice could only be acquired if there was an intention of staying in
the
new home permanently in the sense of a stay of indefinite
duration. It is further argued for the appellant that the recent
case
of Chikwenengere v Chikwenengere (S-75/06 in effect
adopted the same approach. Mr de Bourbon cites a number of
South African and English authorities1
that he argues suggest that there is a distinction between a “weak”
and “strong” intention, on the part of the de cujus, to
abandon his previous domicile and settle permanently in the country
of domicile. He argues that in Chikwenengere’s case, the
court applied the test of strong intention even though it had used
both the words “permanently” and “indefinitely”.
The latter
word, in Mr de Bourbon’s submission, suggested a “weak”
intention.







I am not persuaded by these contentions.







It appears to me that the authorities cited
have not always deliberately made the distinction between a
“weak”
and a “strong” intention in determining whether or not the de
cujus
had the requisite animus manendi vis-à-vis
his domicile of choice. No authority has in fact been cited which
specifically qualified the requisite animus manendi as either
“strong” or “weak”. To suggest this qualification, in my
view, is akin to requiring the court to apply a test
higher than that
of “a balance of probabilities” in its determination of the state
of mind of the de cujus. It is trite that the acquisition of
domicile of choice is proved on a balance of probabilities.







I also find, in so far as it is argued that the word
“permanent” denotes a strong intention as opposed to the word

“indefinitely”, that the courts tend to use the words
interchangeably. As Mr de Bourbon himself pointed out, this
trend is observed in Chikwenengere’s case supra.
Going by what is stated in the appellant’s Heads of Argument, De
Jager’s
case supra seems to fall into the same trap. It
is argued for the appellant, on the basis of that case, that the
correct statement of the
law was that a domicile of choice could only
be acquired if there was an intention of staying in the new home
permanently in the sense of a stay of indefinite duration.
(my emphasis).







In view of the above, I do not find to be
persuasive the appellant’s submission that there is a radical
difference
in the approach adopted by the court, for instance, in the
cases of GRE Insurance Co Ltd v Chisnall, on the one hand and
De Jager and Chikwenengere’s cases, on the other.







I find no fault in the learned Judge’s analysis
of the evidence in this case. I am satisfied that the dictum
that he cited from Chisnall’s case, can appropriately be
applied to the circumstances of this case. The appellant, on the
evidence before the court, no longer
had any business interests in
Zimbabwe at the time the proceedings were instituted. He also did
not have any family interests
left. There is strong evidence
therefore that what interest or attachment he did have might have
been no more than emotional or
sentimental. Viewed against the other
factors referred to, I am not persuaded that this interest is
sufficient to disprove an intention
on his part to make a permanent
home in another country. His stated intention to come back to
Zimbabwe should the economic situation
improve is clearly what is
referred to in Chisnall’s case supra as being based
on some “vague or improbable contingency”. It does not help his
case.




The appellant also argues that the court a quo
failed to critically analyse the evidence to determine precisely when
the appellant and the respondent settled permanently in South
Africa.
In particular reference is made to the unchallenged evidence of the
appellant that up to and including January 2003 (when
the proceedings
were instituted) he was moving “backwards and forwards” between
South Africa and Zimbabwe. The submission
is made that at that time
he had not settled permanently in South Africa. It was said that at
the time of institution of the proceedings
the required intention to
change domicile was not present.







My reading of the evidence before the court suggests
that the parties left Zimbabwe in order to live in South
Africa in
the middle of 2002. By that time the defendant had divested himself
of all assets in Zimbabwe. Late in 2002 he bought
a house in South
Africa and commenced employment in that country. The learned Judge
noted tat eve though the respondent’s daughter
commenced education
in South Africa the respondent had not, managed to relocate to South
Africa. At the time the divorce proceedings
were instituted in
January 2003, the respondent was living in Zimbabwe while the
appellant was living in South Africa. His evidence
that he was
moving “backwards and forwards” between the two countries was not
specific as to how often this was. He made it
evident that those
visits were either for business or family purposes. His family had
“moved away”.







All this, in my view, negates any suggestion that
the appellant had not, at the time the proceedings were instituted,

settled permanently in South Africa. It in effect points to the
contrary.







I have no doubt that the course the appellant’s
conduct took, was inconsistent with his stated intention of
wishing
to retain Zimbabwe at his country of domicile. On the authority of
Howard’s case supra such conduct cannot prevail over
clear indications to the contrary.







In Chikwenengere’s case supra,
the court summarized the requirements for the acquisition of a
domicile of choice as follows –



i) the factum of residence;



ii) the animus manendi, or intention of remaining
permanently; and



iii) freedom of volition.





The learned Judge correctly found, that these
requirements were fully met in casu. That being the case, I
find no reason to interfere with the reasoning of the learned Judge.




In the result, the appeal has no merit. It is dismissed with
costs.















MALABA JA: I agree















GARWE JA: I agree











Gill, Godlonton & Gerrans, appellant’s legal
practitioners



Honey & Blanckenberg, respondent’s legal practitioners



1
Johnson v Johnson 1931 AD 391; Ley v Ley Executor &
Ors
1951 (3) SA 186 (A); Howard v Howard 1966 (2) SA 718;
Carvalho v Carvalho 1936 SR 219