DISTRIBUTABLE
(117)
Judgment
No. SC 53/04
Civil
Appeal No. 83/99
JUDITH
MABABA MAPHOSA v GREEK NCUBE
SUPREME
COURT OF ZIMBABWE
CHEDA
JA, MALABA JA & NDOU AJA
BULAWAYO,
MARCH 29 & SEPTEMBER 10, 2004
The
appellant in person
R
Moyo-Majwabu, for the
respondent
CHEDA
JA: The appellant once lived with the respondent as lovers who
intended to marry. Although the appellant says they were
married,
this is not true. They never got married or took any steps to do
so, either under the Marriages Act or under customary
law.
The
appellant suggested that their love affair just ended, but the
respondent gave details of how it ended. He said the appellant
had
three other children about whom she never told him the truth. She
even lied that one of them was the child of a deceased sister.
When
he eventually discovered the truth, she confessed in tears that they
were all her children. The respondent decided after
this discovery
that he could not marry her anymore and that she should vacate his
house. She gave excuse after excuse until it
became clear that she
had no intention of leaving the house. When the appellant realised
that her excuses were no longer accepted
by the respondent, she
turned violent and became abusive towards the respondent. By this
time the parties were using separate bedrooms.
The
respondent made an application to the High Court to have the
appellant evicted from the house. She was served with the papers
but did nothing until a default judgment was entered against her. A
warrant of eviction followed. Judgment was entered on 29 January
1993. Again she did nothing for some time. On 2 April 1993
the Deputy Sheriff served her with a notice of eviction. She
did
not do anything until 22 April 1993 when she filed an
application for rescission of the judgment. This application was
withdrawn on her own instructions. Since then the matter has been
to court, either at her instance or at the instance of the
respondent,
several times.
A
number of orders have been issued against the appellant, all of which
she has ignored, namely
1. On 29 January 1993 she
was ordered to vacate the house;
2. On 15 September 1994 she
withdrew her application for rescission;
3. On 13 May 1995 an order
for re-eviction was made after she had returned and broken into the
house;
4. On 8 May 1998 the court
refused to hear her as she was in contempt of the court order; and
5. On 24 March 1999 her
application for rescission was dismissed.
As
things stand, all these orders still stand against the appellant.
If she is in the house at the moment, she is still liable
to
eviction.
I
prefer to quote what KAMOCHA J said in dismissing her
application, against which dismissal she now appeals:
The
application is devoid of any merit. She does not deserve to be
heard since she persistently defies the orders of this court.
We
accorded the appellant a hearing, but it became clear that she had no
explanation or good ground for appealing against KAMOCHA Js
judgment.
The
appeal is dismissed with costs.
MALABA
JA: I agree.
NDOU
AJA: I agree.
James, Moyo-Majwabu &
Nyoni, respondent's
legal practitioners
