REPORTABLE ZLR (16)

Judgment No. SC 16/08

Civil Appeal 369/05

DENNIS GREGORY KUNG v BEVERLEY MARIA KUNG

SUPREME COURT OF ZIMBABWE

MALABA JA, GWAUNZA JA & GARWE JA

HARARE, FEBRUARY 5 & SEPTEMBER 16, 2008

A P de Bourbon SC, for the appellant

R Y Phillips, for the respondent

GWAUNZA JA: The appellant instituted divorce proceedings against the respondent in the High Court. Having considered the issue of whether or not the plaintiff was domiciled in Zimbabwe and having found, that he had adopted South Africa as his domicile of choice at the time the divorce proceedings were instituted, the High Court decided that it had no jurisdiction to entertain the action. The appellant was aggrieved at this decision and has now appealed against it to this Court.

It is not in dispute that even though the respondent raised the issue of the appellant’s domicile in her plea, this matter was not considered at the pre-trial conference stage. The learned Judge a quo was alive to this circumstance and proceeded, mero motu, to consider the matter on the evidence led during the trial. The learned Judge determined, on the authority of Boswinkel v Boswinkel 1995 ZLR (2) 59 at p 60, that the court could, on its own, properly enquire into, and satisfy itself on, the issue of the plaintiff’s domicile. I am satisfied that the court a quo was correct in proceeding in that manner.

Evidence on the question of the appellant’s domicile is for the most part not in dispute and is aptly summarized in the parties’ heads of argument. The appellant was born and educated in Zimbabwe. His mother being a citizen of South Africa, the appellant was able to obtain a South African passport and the right of residence in that country. After their marriage in 1999, the parties initially lived in Harare. They had certain business interests in Zimbabwe. Apart from the parties’ concern over the economic situation in Zimbabwe, they also wished to have the respondent’s daughter from a previous marriage educated in South Africa. To this end the parties proceeded to purchase a residence in South Africa in 2002, and placed the daughter in a South African school. Before that, the appellant had disposed of all his assets in Zimbabwe and externalised the proceeds. He acquired other assets in South Africa and secured employment in that country. The defendant, did not relocate to South Africa. No family of the appellant remained in Zimbabwe and he himself did not maintain his permanent residence status in Zimbabwe. At the time the divorce proceedings were instituted, the plaintiff was already living in South Africa. It was his evidence that at that time, he was going “backwards and forwards” between Zimbabwe and South Africa.

It is trite in our law that the court’s jurisdiction in divorce matters is based upon the domicile of the husband at the time the action is instituted. The divorce proceedings in casu were instituted in January 2003. The disposal of the appellant’s assets in Zimbabwe, his relocation to South Africa and his acquisition of South Africa permanent residence all occurred before this date. It appears undisputed that the only way the appellant remained connected to Zimbabwe was through the few visits to the country as he traveled “backwards and forwards” between Zimbabwe and South Africa.

The learned Judge’s analysis of the evidence before him, and the conclusions he reached, are contained in the following passage at p 7 of the judgment:

“The issue before the court is whether the plaintiff has abandoned his domicile of origin in favour of a domicile of choice. The evidence led establishes in the view of this court that the plaintiff took a deliberate decision to abandon his domicile of origin in Zimbabwe in favour of a domicile of choice in South Africa. The plaintiff did so with the necessary state of mind or aminus manendi as evidenced by his clearly carefully planned disposal of local assets and assuming that he receives the proceeds thereof in foreign currency outside Zimbabwe. He then applied those proceeds together with the funds that he was able to secure to establish a residency outside this country and other assets in South Africa.

It is not in dispute that he secured employment in order understandably to consolidate his financial well being in South Africa. The visits of the plaintiff, if any, to Zimbabwe do not affect, in the view of this court, the facts of this matter and the inference to be drawn from his settled state of mind.”

The learned Judge cited authorities to support his findings. He quoted from the case of Howard v Howard 1966 RLR (182) p 188, where it is stated that:

“Even if expressions of intention are clear and consistent, they cannot prevail against a course of conduct inconsistent with them or lending to an opposite inference.”

On the basis of this authority, the court a quo dismissed the appellant’s express denial of having adopted South Africa as a domicile of choice.

The court also relied on the dictum in GRE Insurance Ltd v Chisnall 1982 (1) SA 387(SZ) at p 390 A to the effect that:

“An intention to reside in a country for a fixed period of time, or until the happening of some clearly foreseen and reasonably anticipated event, will not be sufficient, but, if the proper conclusion from all the circumstances is that the propositus intends to make his home in a country for an indefinite time, he will acquire a domicile of choice there notwithstanding a continuing emotional attachment to some other country, or an intention to change his residence upon some vague or improbable contingency”.

Mr de Bourbon for the appellant challenges the findings of the court a quo and argues that the dictum cited above in Chisnall’s case supra does not accurately reflect the law of Zimbabwe. He submits that the law was correctly stated by GARWE J (as he then was) in De Jager v De Jager 1998 (2) ZLR 419 (HC), to the effect that a domicile of choice could only be acquired if there was an intention of staying in the new home permanently in the sense of a stay of indefinite duration. It is further argued for the appellant that the recent case of Chikwenengere v Chikwenengere (S-75/06 in effect adopted the same approach. Mr de Bourbon cites a number of South African and English authorities¹ that he argues suggest that there is a distinction between a “weak” and “strong” intention, on the part of the de cujus, to abandon his previous domicile and settle permanently in the country of domicile. He argues that in Chikwenengere’s case, the court applied the test of strong intention even though it had used both the words “permanently” and “indefinitely”. The latter word, in Mr de Bourbon’s submission, suggested a “weak” intention.

I am not persuaded by these contentions.

It appears to me that the authorities cited have not always deliberately made the distinction between a “weak” and a “strong” intention in determining whether or not the de cujus had the requisite animus manendi vis-à-vis his domicile of choice. No authority has in fact been cited which specifically qualified the requisite animus manendi as either “strong” or “weak”. To suggest this qualification, in my view, is akin to requiring the court to apply a test higher than that of “a balance of probabilities” in its determination of the state of mind of the de cujus. It is trite that the acquisition of domicile of choice is proved on a balance of probabilities.

I also find, in so far as it is argued that the word “permanent” denotes a strong intention as opposed to the word “indefinitely”, that the courts tend to use the words interchangeably. As Mr de Bourbon himself pointed out, this trend is observed in Chikwenengere’s case supra. Going by what is stated in the appellant’s Heads of Argument, De Jager’s case supra seems to fall into the same trap. It is argued for the appellant, on the basis of that case, that the correct statement of the law was that a domicile of choice could only be acquired if there was an intention of staying in the new home permanently in the sense of a stay of indefinite duration. (my emphasis).

In view of the above, I do not find to be persuasive the appellant’s submission that there is a radical difference in the approach adopted by the court, for instance, in the cases of GRE Insurance Co Ltd v Chisnall, on the one hand and De Jager and Chikwenengere’s cases, on the other.

I find no fault in the learned Judge’s analysis of the evidence in this case. I am satisfied that the dictum that he cited from Chisnall’s case, can appropriately be applied to the circumstances of this case. The appellant, on the evidence before the court, no longer had any business interests in Zimbabwe at the time the proceedings were instituted. He also did not have any family interests left. There is strong evidence therefore that what interest or attachment he did have might have been no more than emotional or sentimental. Viewed against the other factors referred to, I am not persuaded that this interest is sufficient to disprove an intention on his part to make a permanent home in another country. His stated intention to come back to Zimbabwe should the economic situation improve is clearly what is referred to in Chisnall’s case supra as being based on some “vague or improbable contingency”. It does not help his case.

The appellant also argues that the court a quo failed to critically analyse the evidence to determine precisely when the appellant and the respondent settled permanently in South Africa. In particular reference is made to the unchallenged evidence of the appellant that up to and including January 2003 (when the proceedings were instituted) he was moving “backwards and forwards” between South Africa and Zimbabwe. The submission is made that at that time he had not settled permanently in South Africa. It was said that at the time of institution of the proceedings the required intention to change domicile was not present.

My reading of the evidence before the court suggests that the parties left Zimbabwe in order to live in South Africa in the middle of 2002. By that time the defendant had divested himself of all assets in Zimbabwe. Late in 2002 he bought a house in South Africa and commenced employment in that country. The learned Judge noted tat eve though the respondent’s daughter commenced education in South Africa the respondent had not, managed to relocate to South Africa. At the time the divorce proceedings were instituted in January 2003, the respondent was living in Zimbabwe while the appellant was living in South Africa. His evidence that he was moving “backwards and forwards” between the two countries was not specific as to how often this was. He made it evident that those visits were either for business or family purposes. His family had “moved away”.

All this, in my view, negates any suggestion that the appellant had not, at the time the proceedings were instituted, settled permanently in South Africa. It in effect points to the contrary.

I have no doubt that the course the appellant’s conduct took, was inconsistent with his stated intention of wishing to retain Zimbabwe at his country of domicile. On the authority of Howard’s case supra such conduct cannot prevail over clear indications to the contrary.

In Chikwenengere’s case supra, the court summarized the requirements for the acquisition of a domicile of choice as follows –

i) the factum of residence;

ii) the animus manendi, or intention of remaining permanently; and

iii) freedom of volition.

The learned Judge correctly found, that these requirements were fully met in casu. That being the case, I find no reason to interfere with the reasoning of the learned Judge.

In the result, the appeal has no merit. It is dismissed with costs.

MALABA JA: I agree

GARWE JA: I agree

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Honey & Blanckenberg, respondent’s legal practitioners