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