Gwenhure v Heka and Another (125 of 2024) [2024] ZWHHC 125 (28 March 2024)

1 HH 125 - 24 HCH 8078/22 PHILLIP GWENHURE versus MARY HEKA and REGISTRAR OF MARRIAGES HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 13 February 2024 & 28 March 2024 Trial F Malinga, for the applicant B Ngwenya, for the first respondent No Appearance for the second respondent MAXWELL J: On 29 November 2022 applicant filed the present application for a declarator. He stated in the founding affidavit that he was approaching this court in terms of Section 14 of the High Court Act [Chapter 7:06] seeking an order to the effect that the marriage entered into by himself and the first respondent at Chitungwiza on 16 January 2004 is void and of no legal effect on the basis that it was entered into illegally. He stated that on 4 May 1985 he had entered into a civil marriage in terms of the then Marriage Act [Chapter 37] with his first wife, one Kathelene Makoni, in Bulawayo. They separated in May 2001 and Kathelene relocated to the United Kingdom. Applicant also relocated to the United Kingdom in 2003. In the same year he was served with divorce summons whilst in the United Kingdom. He instructed legal practitioners to represent him. In December 2003 he came to Zimbabwe and visited his first wife’s Legal Practitioners. He was advised that his first wife was also in Zimbabwe and it was possible to meet and finalise the necessary Consent Papers. They were referred to a certain office to sign the documents before a Commissioner of Oaths. He signed and was assured that she would also sign and afterwards the papers would be filed at court for the divorce to be granted by consent on the agreed terms as per the signed documents without further input from him. Sometime in January 2004, whilst still in Zimbabwe, he called his first wife’s Legal Practitioners and was assured that HH 125 - 24 HCH 8078/22 the divorce order by consent had been secured. He was promised that the order would be sent through his legal practitioners. On the assurance of his first wife’s Legal Practitioner, he proceeded to make arrangements to marry first respondent. On 16 January 2004 they were married before a Magistrate at Chitungwiza in terms of the then Marriage Act [ Chapter 5:11]. Applicant avers that at the time of marriage, he was of the genuine but mistaken belief that his first marriage had been truly and correctly cancelled by way of a divorce order such that there was no legal impediment to his getting married to first respondent. He eventually got the court order for the divorce proceedings and did not bother to check on the actual dates of the order. Recently he discovered that the order was granted on 19 February 2004 and not earlier as he had been made to believe. It therefore follows that his marriage to first respondent on 16 January 2004 was at a time when he was still in another valid monogamous marriage with his first wife. He did not appreciate the legal implications and continued to live with first respondent like married people. Due to some irreconcilable differences the love relationship between him and first respondent broke down irretrievably such that they are no longer living as husband and wife. He indicated that his current legal practitioners advised him that his marriage to the first respondent was void from the start and under the circumstances the only legally valid way to terminate the putative marriage between himself and first respondent is for this honorable court to declare it to be a legal nullity of no legal effect. He submitted that he has a constitutionally protected right to a family and is currently being hamstrung from exercising it by the fact that he is currently held up in the putative marriage with the first respondent. In opposing the application, first respondent raised a point in limine that applicant has proceeded using a wrong procedure. Further that he should have commenced proceedings under the provisions of the Matrimonial Causes Act [Chapter 5:07]. She further stated that applicant should have instituted proceedings under Rule 68 of SI 202/21 by way of summons. She urged the court not to exercise its discretion in favour of hearing the application. On the merits, she averred that the marriage was entered into legally. She further averred that applicant knew very well that he was misleading her to enter into a marriage with him knowing very well that divorce proceedings had not been finalized with his first wife. she pointed out that they lived together for 17 years and applicant vehemently said she did not deserve anything out of the marriage. In her view, he wanted to use the nullification of the marriage as a justification that nothing was legal in the 17 years they lived together and that she does not deserve anything as she did not contribute HH 125 - 24 HCH 8078/22 anything financially to the properties they acquired together. She pointed out further that he asked her to quit her job and stay at home to take care of his grandchild whom they had adopted. She urged the court to dismiss the application and refer the applicant to the correct procedure in terms of the Matrimonial Causes Act. In the alternative, she prayed for an order that includes that the issues relating to property acquired in the United Kingdom in the name of both parties are to be dealt with by the courts in the United Kingdom and also that issues relating to other proprietary rights (including pension fund) be dealt with in the United Kingdom with the assistance of the parties solicitors. In his answering affidavit, applicant avers that the opposing affidavit is improperly before the court as it was not properly issued by the Registrar of this court. He avers that there is no stamp from the Registrar and the date of filing cannot be established form the document itself. He disputed that a wrong procedure had been followed and stated that it was not obligatory for him to bring the application under the provisions of either the Matrimonial Causes Act [Chapter 5:13] or by action procedure. He further stated that the application is not for the distribution of matrimonial property and does not fall within the scope of the Matrimonial Causes Act [Chapter 5:13]. On the merits of the matter, he stated that it is immaterial whether he was at fault or not as the fact remains that by operation of the law, the marriage was a legal nullity beyond redemption, no matter who was wrong or right. He averred that by granting the order sought, this court will be assisting both parties to move on with their lives as clearly, their relationship is already beyond redemption. He denied the allegation that he intended to make first respondent walk out empty handed and submitted that she is at liberty to make her claim in the courts in the United Kingdom where they both reside. The first question to consider is whether or not the Applicant followed the correct procedure in this matter. I agree with the respondent that applicant ought to have approached the court through action procedure. The Matrimonial Causes Act [Chapter 5:13] was promulgated to amend the law relating to marriage, judicial separation and nullity of marriage and to provide for matters incidental thereto or connected therewith. Its date of commencement was 17 February 1986. It follows that as from that date, any proceedings in relation to marriage, judicial separation and nullity of marriage had to be instituted under its provisions. Not only are the provisions of the Matrimonial Causes Act [Chapter 5:13] to be followed, the rules of this court provide that action procedure is appropriate in such circumstances. Rule 68 governs matters for HH 125 - 24 HCH 8078/22 divorce, judicial separation or nullity of marriage. Applicant cannot ignore the provisions of this court’s rules and choose to approach the court differently and expect to be heard. This is more so because there are matters that are incidental or connected with the nullity of marriage that have to be dealt with. Before me the parties were arguing about the immovable property in the United Kingdom. Applicant’s view was that this court has no jurisdiction to deal with those properties. In my view, once applicant accepted the court’s jurisdiction to deal with the nullity of the marriage, he cannot dictate the parameters for such jurisdiction. This is because in terms of Section 7 of the Matrimonial Causes Act [Chapter 5:13], where a court grants a decree of divorce, judicial separation or nullity of marriage or at any time thereafter, the court may make an order with regard to the division of assets. By approaching this court in terms of Section 14 of the High Court Act [Chapter 7:06] applicant is seeking to avoid a determination of issues that are incidental or connected with a decree of nullity of the marriage. This court will not be complicit in that. In Ex parte Raynolds 1970 (1) SA 658 it was stated that only in special or exceptional circumstances will motion procedure be allowed even where a marriage is null and void ab initio. See also Ex parte Bester 1951 (1) SA 774. I do not find any special or exceptional circumstances to warrant this matter being decided through motion proceedings. Applicant followed the wrong procedure. The matter is therefore improperly before the court. The following order is appropriate. The application be and is hereby struck off the roll with costs. MAXWELL J:…………………….. Muronda Malinga Masango Legal Practice, applicant’s legal practitioners. B. Ngwenya Legal Practice, first respondent’s legal practitioners.