MUGABE v MUTSAHUNI (386 of 2025) [2025] ZWHHC 386 (1 July 2025)

3 HH 386-25 HCH 1521/23 REF CASE HC 6597/23 BONA NYEPUDZAI OUMA MUGABE versus SIMBARASHE MUTSAHUNI HIGH COURT OF HARARE **TSANGA J** 19 March & 1 July 2025 _R Matsikidze,_ for applicant _ABC Chinake,_ for respondent **Opposed Application (Exception)** TSANGA J: This is an application for an exception to the plaintiff’s summons. The parties are referred to as per the original pleadings. The plaintiff issued summons for divorce against the defendant who filed his plea and counter claim. The plaintiff subsequently applied to amend her summons under HC 6597/23. Although the defendant initially opposed the application to amend, ultimately an order consenting to the filing of an amendment had been granted by consent. In effecting the amendment, the plaintiff substituted her claim for divorce with a claim for the annulment of the marriage in the main and a decree of divorce on the grounds of irretrievable breakdown in the alternative. The nature of the amendment had been made known to the defendant from the onset of that application. The defendant has filed this exception to the summons and declaration. The gist of the exception is that the plaintiff cannot seek both nullification and divorce in the same action. The plaintiff’s claim for nullification is on the basis that when the defendant married her on 1 March 2014, he was already married and was still married at the time to one Margaret Jeanine Brooks in the United States. In the amended declaration the plaintiff pleaded in the relevant paragraphs as follows: “6. Accordingly, the Plaintiff avers that, on the date of the solemnization of her marriage to the Defendant, he was lawfully married in a civil marriage to someone else and, accordingly, was not capable of lawfully marrying the Plaintiff; In the further alternative 7\. The Plaintiff avers that the marriage between the Plaintiff and the Defendant is void _ab initio_ as it did not satisfy the requirements of the Marriage Act; and, in the further alternative, 8\. The Plaintiff avers that the Defendant wrongfully and unlawfully failed to disclose to the Plaintiff that he was still married to someone else and, therefore, could not lawfully contract a marriage with the Plaintiff. 9\. The Plaintiff avers that, in all the above instances, her marriage to the Defendant may properly be annulled by this Honourable Court and prays for a Decree of Annulment together with ancillary relief, as set out herein. 10\. By the deletion of the existing paragraph 8 and the insertion of the following paragraphs starting as paragraph 8A et seq: 8A. In the event of the granting of a _**Decree of Nullity /Annulment; and/or, in the alternative, a Decree of Divorce**_ by this Honourable Court, it is be just and equitable that the Defendant be ordered……….” Upon receiving the amended summons, the defendant’s lawyers wrote to the plaintiff’s lawyers on 4 November 2024, indicating that the amendment had added a cause of action which made the claim vague and embarrassing because there was either a marriage or there was no marriage between the parties. They indicated that a party must have the courage of his/her convictions and that the plaintiff could not have it both ways. They were of the view that the two causes of action, namely divorce and nullity were mutually exclusive even if pleaded in the alternative. They also raised an objection to the plaintiff claiming property belonging to other people or companies. In essence, they deemed the summons and declaration expiable. The plaintiff’s lawyers responded that the letter was a re-hash of the defendant’s earlier objection to the amendment under HC 6597/23, which amendment defendant had consented to through an order by consent. As such, they held a contrary view that the summons and declaration were not expiable against the backdrop of the amendment having been by consent. _**Submissions by the parties**_ It is common cause that after the amended summons were filed a notice to plead had been sent to the defendant on 13 January 2025. Mr _Matsikidze_ , who argued for the defendant, emphasised that in terms of rule 68 of the High Court Rules 2021, one of the options open to a party in matrimonial matters upon receipt of such notice to plead, is to file an exception. In arguing that the claims for nullity and divorce are mutually exclusive, he also drew on s 5 of the Matrimonial causes Act which enjoins a court to grant a decree of divorce on the grounds of irretrievable break down where satisfied that there are no reasonable prospects of the restoration of a normal marriage relationship. Section 13 of the same Act then addresses nullity making the two causes of action stand alone. His argument was therefore that by seeking both the plaintiff was or is effectively arguing that the marriage was both valid and invalid albeit in the alternative. The defendant was said to be in a position where it was not clear whether he is answering to a divorce claim based on irretrievable break down or an annulment of a marriage that never existed legally. Moreover, in maintaining that the defendant had introduced a new cause of action he cited the case of _Kenmark Builders (Pvt) Ltd (In Liquidation)_ v _James Arthur Colin Girdlestone and Anor_ 2019 (1) ZLR 658 (H) 662 B-C, where the court held that: “The amendment sought should not have the effect of altering the real issues between the parties. The court has no power to allow an amendment that has the effect of introducing a new cause of action. An amendment to pleadings will be permitted only if it does not introduce a new cause of action, seek to alter the nature of the suit or cause of action or alters the foundation or character of the case. What determines the character of a suit is its foundation or cause of action and not the relief sought. If this course were to be permitted, the other party would require to be given an opportunity to rebut the new cause of action, resulting in a different trial.” He further drew on relevant provisions of the rules to assert the need for pleadings to be clear and concise on the material facts upon which a claim is made. The proper cause of action he insisted would have been for the plaintiff to withdraw her summons and issue fresh summons for annulment and not to make an amendment which straddles both worlds. Mr _Chinake_ appeared for the plaintiff and emphasised that the order obtained by the plaintiff to amend in HCH 6597/23 was by consent. He highlighted that the draft amended summons and declaration were part of the papers filed under that case and as such the defendant was fully conversant with the content of the amendment. As such, he argued that the defendant was now effectively asking the court to visit an extant order of the court issued by consent when the effect of a consent order is to render a matter _res judicata_. He relied on _Georgias & Anor _v _Standard Chartered Finance Zimbabwe Ltd_ 1998 (2) ZLR 488 (S) that an order by consent extinguishes any order that existed. He also relied on _Yuesheng_ v _Chinyadza HHC 24/24_ that the effect on a judgment by consent was the same as _res judicata._ He further pointed to _Norah Ncube_ v _Registrar of Deeds_ HB10/10 where applicant had sought to appeal against an order by consent and the appeal had been refused. On the merits of the exception, his main argument was that until the marriage is set aside the plaintiff must plead such a marriage since there is _prima facie_ a valid marriage certificate issued to the parties. He maintained that a party is entitled to plead the alternative cause of action as it is ancillary and not mutually exclusive to the findings as regards the correct status of the current marriage. Furthermore, the defendant was said to be dilatory over filing his plea for more than two years since the divorce proceedings started as he seeks to avoid whether the marriage was bigamous. His prayer therefore was that the defendant be ordered to file his plea on the merits within five business days from the granting of a court order. He also sought costs on a higher scale. _**Factual and Legal Analysis**_ Central to the exception plea before me is to appreciate what was before the judge in the matter that is said to be constitutive of _res judicata_. This principle prevents duplicative litigation on the basis that a party will already have had a shot on the same matter and which was resolved in that previous hearing. The key aspects of this plea are the following 1. Finality of judgment 2. By a court of competent jurisdiction 3. The parties must be the same 4. The cause of action must be the same The plaintiff brought the application under 6597/23 against the backdrop of order 41 (10) and (11) which provides as follows: “(10) The court or a judge may, notwithstanding anything to the contrary in this rule, at any stage of the proceedings before judgment, allow either party to alter or amend any pleading or document, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. (11) A summons or declaration may with the leave of the court or judge be amended to substitute or to include a cause of action arising after the issue of summons: Provided that where, in the opinion of the court or a judge, such an amendment does not change the action into, or add to it, an action of a substantially different character which would more conveniently be the subject of a fresh action.” The plaintiff was clear therein that she was introducing a new cause of action which had hitherto been unknown to her when she first issued the summons. She initially sought the following order: “1. The Application for leave to file pleadings out of time and to introduce a new cause of action under HC 151/23, being a claim for annulment of the marriage between the Applicant and the Respondent, be and is hereby granted; 2\. The Applicant, who is the Plaintiff in Case No HC 1521/23, be and is hereby granted leave to file an amended Summons and Declaration, in accordance with the Draft presented before this Honourable Court within 10 (ten) days from the date of this Order; 3\. Para (s) 19, 20 21 and 22 inclusive of the Defendant’s Plea be and are hereby struck out with Respondent to pay the costs. 4\. The Applicant shall pay the Respondent’s costs in respect of the amendment to the Plaintiff’s Summons and Declaration under Case No HC 1521/23.” The order that was ultimately granted by consent reads as follows: 1. The Applicant be and is hereby allowed to file its amended matrimonial Summons and declaration in case number HCH 1521/23 within 10 days of uploading of this Order on the IECMS platform. 2. . After the lodging of the amended Summons and declaration, _**the matter shall proceed in terms of the rules**_. 3. There shall be no order as to costs. The order itself does not say it was by consent but I have no reason not to believe counsel for the plaintiff who represented the plaintiff in that hearing. What is clear from the order is that the plaintiff as applicant was allowed to file the amended pleadings and thereafter the matter would proceed in terms of the rules. In other words, the order by consent related to being allowed to file the amended pleadings. The order that was granted by consent was therefore somewhat curtailed from that which the plaintiff had sought. It also added the crucial that paragraph that subsequent actions to the filing would be in terms of the rules. As to whether the matter is _res judicata_ , the parties are same, and the court was one of competent jurisdiction. The cause of action, however, was an amendment of summons whereas in the application before me the cause of action is an exception to the amended summons that were filed. The two are different. I do not think that all the elements of _res judicata_ are met _._ The order itself was crafted ambiguously in that it could mean the defendant fully accepted the terms or as he now interprets it, that he merely allowed the amendment to be filed with the amended summons being subject to whatever permissible action under the rules. Once summons or amended an exception is one of the procedural rules that can be adopted. Rule 68 (3) of the High Court Rules 2021 is couched as follows: “(3) In an action for divorce, judicial separation or nullity of marriage where the defendant has failed to enter appearance within the prescribed time provided for in the summons the plaintiff wishing to obtain judgment shall file and deliver a notice in accordance with Form No 28 calling upon the defendant if he or she wishes to defend, to purge his or her failure to enter appearance and to plead, answer or except, or make claim in reconvention within twelve days of the date of delivery of the notice, and informing him or her that in default thereof judgment will be prayed for against him or her.” The consent to the _**filing**_ of amended summons could not have precluded the right to bring an exception. In the manner that the order by consent was couched, it did not preclude the defendant from raising procedural objections that he was entitled to once the amendment was filed. In the order by consent what the defendant appears to have done was to merely reserve the right to raise a procedural objection at the right time. This would appear to have been the deliberate tactic behind the wording of the order as the defendant could not have excepted to an amendment which had not yet been filed and to which he had been refusing permission to be filed. Having said that, what emerges from the amended summons and declaration very clearly is that the plaintiff intends to seek nullity of the marriage as her point of departure. In general, a marriage contracted whilst a party is married to someone else from whom he has not divorced is void and in such a case a decree of nullity would be justified. From the hearing of the exception, it was also clear that the defendant intends to attack this ground of nullity as the basis for dissolution. As such there is everything to be said in favour of avoiding a multiplicity or circuity of actions. There is no reason why the issue of annulment cannot be tried first. If annulment is unsuccessful the marriage can proceed on the grounds of irretrievable break ground. It would make no sense for the plaintiff to then proceed to issue new summons on the basis of irretrievable break down if annulment is not proved. There is nothing in both s 5 and s 13 of the Matrimonial Causes Act that forbids seeking nullity first and if that fails proceeding on the ground of irretrievable breakdown if both are incorporated in the same summons. Evidence obviously has to be led to determine that which is most applicable from the factual spectrum of a case. Section 13 merely spells out additional grounds of nullity of marriage which are in addition to any other ground on which a marriage is by law voidable. It does not prohibit the joining of causes of action since after all both causes do not in any way change the true complexion of a case which is termination of the marriage. The context under which a party seeks to depart from the usual mode of pleading one cause of action in a divorce case is what is important. For example, _Botha_ v _Steyn_ [2021] 4 All SA 87 (KZD) the plaintiff issued summons for divorce and in the alternative, if the court found that there was no valid marriage, she had sought ancillary benefits on the basis that she had been regarded as a wife. An exception to the claim as vague and embarrassing had been taken and an order granted that the issue would be determined at the main hearing. The court ultimately dismissed her action on the basis of nullity of her marriage, having started off by addressing whether factually there was a marriage. Whilst it is generally not the norm to have two causes of actions in divorce summons, the ends of justice would be better served by allowing the two actions to be pleaded in the alternative herein given the facts of the matter. I am in agreement that in this instance the irretrievable breakdown would flow from any finding that the marriage was not null and void should the trial court make that finding. At the heart of the matter is the plaintiff’s request to end the relationship between herself and the defendant be it by a declaration of nullity or by a decree of divorce on the basis of irretrievable breakdown. The evidence at the trial will needless to say tell the story as to the cause of action that is most applicable. In the result the exception is dismissed and the defendant is required to file his plea to the amended summons within 5 days of the date of this order. Costs will be in the cause. **Tsanga J:……………………………………………….** _Kantor & Immerman, _Plaintiff’s Legal Practitioners _ Matsikidze Attorneys at law,_ Defendant’s Legal Practitioners