REPORTABLE Z.L.R. (69)

Judgment No S.C. 82\2002

Civil Appeal No 74\2002

RONNIE JACARANDA GALANTE v EDWARD ELIO GALANTE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA & GWAUNZA AJA

HARARE SEPTEMBER 5 & OCTOBER 9, 2002

R.M. Fitches, for the appellant

A.P. de Bourbon SC., for the respondent

SANDURA JA: This is an appeal against the dismissal by the High Court of the appellant’s special plea in which she alleged that the High Court did not have the jurisdiction to hear the divorce action instituted against her by the respondent.

The background facts are as follows. The parties were married to each other in Harare in September 1985 and two children were subsequently born. Thereafter on 3 November 1998 the appellant (“Ronnie”) instituted a claim for divorce and other relief in the High Court (“the first divorce case”). In paragraph 3 of her Declaration she stated that the respondent (“Edward”) was domiciled in Zimbabwe. That averment was admitted by Edward in his plea filed in February 1999.

After the first divorce case had been instituted, Ronnie filed a court application in the High Court in January 1999 (“the maintenance application”) seeking maintenance pendente lite for herself and the two minor children, and a contribution towards her costs in the first divorce action. In order to confirm the jurisdiction of the High Court to grant her the relief which she sought in the application, she incorporated, under oath, the contents of her Declaration in the first divorce case, which included the averment that Edward was domiciled in Zimbabwe.

The maintenance application was heard on 25 November 1999 and Ronnie was awarded maintenance pendente lite for herself and the two minor children in the sum of $100 000,00 per month, and a contribution towards costs in the sum of $50 000,00.

On 4 December 2000 a pre-trial conference for the first divorce case was held and the case was set down for hearing on 5 December 2000. On that day, Ronnie made an application for the postponement of the trial, but the application was dismissed. She then withdrew the first divorce case and was ordered to pay the costs which had been incurred by Edward. She did not claim that the High Court did not have jurisdiction over the matter.

Following the withdrawal of the first divorce case, Edward issued a summons against Ronnie claiming a decree of divorce and other relief (“the second divorce case”) on 6 December 2000. In his Declaration he averred that he was domiciled in Zimbabwe.

Subsequently, on 9 April 2001 Ronnie filed a Special Plea alleging that the High Court did not have the jurisdiction to hear the second divorce case because Edward was not domiciled in Zimbabwe. She did not allege any change of domicile by Edward between 3 November 1998, when she instituted the first divorce case and averred that Edward was domiciled in Zimbabwe, and 6 December 2000 when the second divorce case was instituted. However, she averred that Edward had never lost his domicile of origin, which was the United States of America.

In his reply to the Special Plea, Edward took the point that Ronnie was estopped from raising the issue of his domicile, bearing in mind her averments concerning his domicile in the first divorce case and the maintenance application.

Thereafter, the Special Plea was set down for hearing on 6 December 2001. On that day, the learned judge heard argument on the point in limine which was taken by Edward. The point was that Ronnie was estopped from denying that Edward was domiciled in Zimbabwe. The point in limine was subsequently upheld by the learned judge in the court a quo, and the Special Plea was dismissed with costs. Aggrieved by that decision, the appellant appealed to this Court.

At the hearing of the appeal Mr de Bourbon, who appeared for the respondent, informed the Court as follows:

1. The trial in the second divorce case commenced on 22 July 2002 and was completed on 26 July 2002. The jurisdiction of the High Court was not in issue.

2. The first witness to give evidence was Edward. In his evidence, Edward stated that he was domiciled in Zimbabwe. That evidence was not challenged by Mr Morris who appeared for Ronnie.

3. At the end of the trial, the trial judge granted Edward a decree of divorce, but reserved his judgment in respect of all the other matters which had been raised during the trial.

I did not understand Mr Fitches, who appeared for Ronnie, to disagree with the facts set out above. In addition, after the appeal had been argued, a copy of the divorce order issued on 26 July 2002 was sent to the Registrar of this Court by Mr de Bourbon at the request of the court. The order clearly indicates that on 26 July 2002 Mr Justice SMITH granted Edward a decree of divorce and reserved his judgment in respect of all the other matters which had arisen during the trial.

In the circumstances, it was submitted by Mr de Bourbon that the appeal was an abuse of the process of this Court and ought to be dismissed with costs because the trial in the second divorce case had already been concluded and a decree of divorce granted. I am in complete agreement with that submission.

The Special Plea was filed because Ronnie contested Edward’s claim for a decree of divorce and other relief and, therefore, intended preventing the hearing of the second divorce case. Now that the trial has been concluded and a decree of divorce granted, with the decision on the remaining issues reserved, there is no justification whatsoever for persisting with the Special Plea and the appeal. There is no longer any reasonable prospect that Ronnie could succeed in her defence to Edward’s claim for divorce because a decree of divorce has already been granted. In addition, it is no longer possible to prevent the hearing of the second divorce case because the trial has already been concluded.

In my view, persisting with the Special Plea and with the appeal in these circumstances is an abuse of the process of this Court. The Court has an inherent power to prevent the abuse of its process.

As VAN DYK J said in Soundcraft (Pty) Ltd t/a Advanced Audio v Daan Jacobs t/a Radio Spares and TV 1982 (4) SA 685 (W) at 687H-688A:-

“Although it is well established that our courts will be very slow to interfere in a litigant’s right to ventilate his case before it, nevertheless, where there is no reasonable prospect that a party can succeed in an action or in his defence to an action, the Court can summarily veto the action or defence if a prosecution thereof would constitute an abuse of its process. See, in this regard, Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 271 and 275 where the learned CHIEF JUSTICE pointed out with reference to the case of Reichel v Magrath 14 AC 665 that:

‘every Court has an inherent right to prevent an abuse of its process in the form of frivolous or vexatious litigation.’

See, too, Ravden v Beeten 1935 CPD 269 at 276; Sussman v Testa 1951 (2) SA 226 (O) at 230C-231D; Argus Printing & Publishing Co Ltd v Anastassiades 1954 (1) SA 72 (W) at 73-4.”

Similar views on the inherent power of the court to prevent an abuse of its own process appear at page 1110 of the 4^th edition of Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa.

Mr Fitches was unable to put up any valid argument as to why Ronnie’s conduct should not be viewed as an abuse of the process of this Court. However, the Court appreciated the difficult position in which he found himself.

In the circumstances, the appeal is dismissed with costs.

CHEDA JA: I agree

GWAUNZA AJA: I agree

N H Franco & Co, appellant's legal practitioners

Atherstone & Cook, respondent's legal practitioners