Musara v Motsi (427 of 2025) [2025] ZWHHC 427 (16 July 2025)

1 HH 427-25 HCH 1359/24 MWANDISA JONAS MUSARA versus WINNET PAIDAMOYO MOTSI HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 5 June 2025 & 16 July 2025 Opposed Matter- Special Plea MAXWELL J: The Plaintiff instituted summons commencing action against the Defendant on 13 October 2023 seeking a decree of divorce and ancillary relief. In response to the summons and declaration, the Defendant filed both a substantive plea and a special plea on the grounds that the court has no jurisdiction to preside over the matter and in the alternative that the matter is lis alibi pendens and ought to be stayed pending determination of the matter in Canada. It was submitted for the Plaintiff that even though there are proceedings pending in Canada he is being prejudiced as he is being denied access to the minor children. In her heads of argument, the Defendant submitted that it is trite that in order for a court to make an effective and binding decision on a case it must have both subject matter jurisdiction (the power to hear the type of case) and the personal matter jurisdiction (the power over the parties to the case). In Stander v Marais 2015 (3) SA 424 (WCC) the court cited Black’s Law Dictionary (6th ed), wherein jurisdiction was defined as follows: “A term of comprehensive import embracing every kind of judicial action. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the powers of courts to inquire into facts, apply the law, make decisions, and declare judgement. The legal right by which judges exercise their authority. It exists when court has cognisance of class of cases involved, proper parties are present, and point to be decided is within powers of court.” In casu, the Defendant is domiciled in Canada and has been there for a significant period. The actor forum rei principle dictates that the court of the Defendant’s domicile (Canada) has jurisdiction. The Zimbabwean courts cannot assume jurisdiction simply because the Plaintiff is HH 427-25 HCH 1359/24 domiciled or resident in Zimbabwe. It is therefore follows that, this court should withhold its jurisdiction as the Defendant is not domiciled in Zimbabwe. The Defendant further submitted that the matter is lis albi pendens, as the same matter is pending before another court of competent jurisdiction therefore this court should decline to hear the case to avoid duplication and conflicting judgments. The principle of lis albi pendens is grounded in the need for judicial comity and efficiency. The authors, Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa (4th ed) at p 249 stated as follows: “If an action is already pending between parties and the Plaintiff brings another action against the same Defendant on the same cause of action and in respect of the same subject matter, whether in the same or in a different court, it is open to the Defendant to take the objection of lis pendens, that is, that another action respecting the identical subject matter has already been instituted, whereupon the court in its discretion may stay the second action pending the decision of the first…… In the given circumstances, the Defendant has filed for divorce proceedings in Canada, which are still pending. The Canadian courts have jurisdiction by virtue of the Defendant’s domicile. Allowing the Zimbabwean courts to proceed with this matter would create a risk of conflicting judgments, which is contrary to the principles of justice and judicial comity. As a result, this court withholds its jurisdiction in the matter. In his heads of argument, the Plaintiff submitted that this court, as a court of inherent jurisdiction, has the power to preside over this matter, and its judgment will be effective if granted. This court has the right to draw on its inherent jurisdiction and the power entrusted to it by the Constitution to, among other things, enable it to provide solutions in certain situations where not doing so would lead to an injustice. In Halsbury’s Laws of England (4 ed), London, Butterworth’s, inherent power is defined as follows: “In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.” The Plaintiff further submitted that it is the child’s best interests that are paramount and that minor children are entitled to protection of the courts, particularly by the High Court as the upper guardian of the rights of children according to s 81(2) of the Constitution. In Mackintosh (Nee Parkinson) v Mackintosh S-37-18 at p 15 para 33, the Court held that: HH 427-25 HCH 1359/24 “A court, such as the court a quo, must always keep in mind that the interests of the minor children are always paramount. In considering those interests, the court should not allow itself to be misled by the appearances that the parties give. It must, in addition to any evidence given, be guided by its own experiences and sense of what is fair…” In the present case the court`s hands are tied in that there are already pending proceedings in Canada that were instituted prior to the proceedings before this court on some issues involving the same parties. This court will withhold its jurisdiction until the matter in Canada is finalised. Moreover, it was admitted that Defendant is in Canada, and it has not been disputed that she has not submitted to the jurisdiction of this court. Further, the proceedings in Canada were instituted prior to the proceedings before this Court on the same issues involving the same parties. Plaintiff argued that they have taken long before being finalised. I believe there should be ways in which he can have that matter dismissed by the Canadian Court if the Defendant is not following the rules in that jurisdiction and is unnecessarily dragging the process. Once that is done, he can then properly approach this Court as the matter in the Canadian Court would no longer be pending, assuming the Defendant will submit to the jurisdiction of this Court. That there is an access order being defied is not for these proceedings. Plaintiff is legally represented and should be advised on what steps to take to enforce his rights granted by an order of Court. Above all, the fact that the Plaintiff is seeking an order that the minor children be awarded to the Defendant makes it more appropriate for the Canadian Court to deal with the issue of the maintenance of the minor children In the result, the special plea be and is hereby upheld. This court withholds its jurisdiction in this matter. MAXWELL J:…………………………………………………….. Nyama Law Chambers, Plaintiff’s Legal Practitioners Lunga, Mazikana Attorneys, Defendant’s Legal Practitioners