MHISHI v MABUTO (123 of 2025) [2025] ZWHHC 123 (3 March 2025)

3 HH 123 - 25 HCH 579/24 JOSEPHINE VONGAI MHISHI versus TAFADZWA SHAW MABUTO HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 21 October 2024 & 3 March 2025 Opposed Matter – Amendment of Pleadings B Mtetwa with B Sitotombe, for the Applicant D Ochieng, for the MAXWELL J: Applicant and Respondent are in the process of divorcing. The divorce matter HCH 4670/22 was set down for trial on 25/3/24. At the hearing of the matter, counsel for the Applicant indicated that Applicant intends to amend her pleadings and a notice to that effect was filed. Applicant sought a postponement of the main matter for that purpose as Respondent was not consenting to the amendments. The postponement was granted pending a decision on the application for amendment of pleadings. On 25/3/24 Applicant who is the Defendant in HCH 4670/22 filed a Notice to Amend the Defendant’s Plea and Claim in Reconvention in terms of rule 41 of the High Court Rules 2021. The reasons or grounds for the amendment were given as follows: The Defendant and minor child are Canadian citizens who are domiciled and resident in Canada. The Plaintiff has residency rights in Canada and there is no reason why the divorce action cannot be heard in Canada. The parties’ minor child has special needs that make it difficult for the Defendant to travel to Zimbabwe with her without endangering her health. Defendant, who wants a physical trial, cannot travel to Zimbabwe without the minor child and cannot, in any event afford the cost of travel. Defendant, as primary care giver to the parties’ minor child, cannot hold down a full time job because of the constant hospitalization of the minor child which requires that she be with the child whenever she is in hospital and she cannot risk bringing the child to Zimbabwe due to her inability to afford medical costs. The parties have pending spousal maintenance and child support applications before the Canadian Courts and it would make sense to have all maintenance related issues heard by the court of domicile of the maintenance applications. Defendant, at the time of the filing of the plea and counter - claim was unaware of the possibility of having the maintenance, custody and spousal support issues determined by the Canadian Courts who would be in the best position to determine both maintenance claims given their knowledge of the Canadian economy. For the Canadian Court to deal with post-divorce spousal maintenance, it must also deal with the divorce decree. Defendant was unaware of this requirement when she filed her plea and counter – claim as she could not, due to financial constraints, consult a lawyer in Canada. The requirement that the husband’s domicile be the effective jurisdictional decider is, in any event, unconstitutional in that it is discriminatory and in violation of provisions of section 56 of the constitution. The Respondent filed an objection to the amendment sought. He stated three grounds on which he objected to the proposed amendment in the following words; “1. The proposal to amend is an abuse of process in that it is made malafide with the ulterior motive of vexing the Plaintiff and disrupting the ongoing trial. No satisfactory basis exists for the withdrawal of the properly made admissions that the Defendant seeks to disown. The proposed amendment to the counter-claim would render it excipiable.” On the 19/4/24 Applicant filed an application for leave to amend her pleadings. In the founding affidavit she stated that she is the Defendant in the divorce action under case number 4670/22. She also stated that there are ongoing related proceedings in Canada dealing with issues of her and the child’s maintenance currently and post-divorce. She pointed out that the Respondent is truly aware of and is participating in the proceedings in Canada. In the Opposing Affidavit, Respondent took issue with the filing of an affidavit attached to the Notice of Amendment. Rule 41(1) of SI 202 of 2021 is couched in the following terms; “41(1) Any party wishing to amend a pleading or document other than a sworn statement filed in connection with any proceedings shall notify all other parties of his or her intention to amend and shall furnish particulars of the amendment.” Applicant filed the notice to amend, a Founding Affidavit and Draft Order. In my view she provided sufficient particulars of the intended amendment. Respondent does not allege any prejudice suffered as a result of that. This was a step taken in ascertaining whether the amendment would proceed as unopposed or not. Respondent’s attitude necessitated the present application. Respondent proceeded to elaborate the grounds stated in the objection to the notice of amendment. He argued that Applicant’s papers motivate the grant of the relief that would be sought if the amendment were allocated instead of motivating a reason for granting the amendment. He further argued that these deficiencies together with untruths that he would expose confirm the insincerity of the application. He pointed out that Applicant had admitted to the jurisdiction of this court and that his residency rights expired in January 2024 therefore he is no longer able to travel in and out of Canada at will. He also pointed out that Applicant had travelled to Zimbabwe with the child with special needs on a number of occasions. He disputed that a flight to Harare is a danger to the minor child’s health and stated that in any event Applicant can testify virtually. He also pointed out that the child’s medical costs are covered by his medical aid. Respondent disputed that financial constraints are a factor for Applicant. He indicated that at the Pre-Trial Conference, Applicant asked for a physical hearing in Zimbabwe. He admitted that if the divorce was to proceed and be finalised in Zimbabwe, a party is unlikely to be able to make a claim in the Ontario Courts for spousal support. The granting or refusal of an application to amend pleadings is a matter for the discretion of the court. In Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 it is stated: “It is paramount that the discretion reposed in the court in respect of amendments be exercised in a manner which allows the issues between the parties to be fairly tried. The fact that the amendment might lead to the defeat of the other party is not the kind of prejudice which should weigh with the Court: GMF Kontrakters (Edms) Bpk & Anor v Pretoria City Council 1978(2) SA 219 (T) @ 222 C – F.” See also Mashonaland Turf Club v Susan Peters & Anor HH 7/21. In UDC Ltd v Shamva Flora (Pvt) 2000 (2) ZLR 210, it is stated that the approach of our courts has been to allow amendments to pleadings quite liberally in order to avoid any exercise that may lead to a wrong decision and also to ensure that the real issue between the parties may be fairly tried. In Ncube v Dube & Others HB 106/4 it is stated that the court has such a discretion to allow a litigant to amend his or her pleadings at any time prior to judgment. In casu the application for leave to amend pleadings came before the commencement of the trial, even though it was on the date the matter was scheduled to commence. Respondent has argued that the amendment sought if allowed would render the plea excipiable. The present proceedings are not for the purpose of determining whether or not the plea as amended has merit. Whether or not the plea is excipiable, in my view, is a decision that can be made after the amendment has been allowed. Respondent further argued that the granting of leave to amend would result in the case returning to the pleadings stage. In my view that is an eventuality that the rules allow since pleadings can be amended at any stage of the proceedings. I am not persuaded that any basis has been laid for this Court to depart from the usual norm of liberally allowing amendments to pleadings, moreso in the context of matrimonial proceedings. The application therefore succeeds. The following order is made: The Applicant’s plea be amended as follows: By the deletion of para 1 and the substitution thereof with the following paragraphs 1. Ad paragraph 1 – 2 As in original plea 1.1. Ad paragraph 3 This is denied and Plaintiff is put to the strict proof of his claims. Plaintiff, who has residency rights in Canada, is also domiciled in Canada where Defendant and the minor child of the marriage are domiciled. It is fair, reasonable, cost effective and equitable that all aspects of the divorce, save for the propriety aspects, be dealt with in Canada. 1.2 Defendant further pleads that the requirement that the man’s domicile be used is unconstitutional and in violation of s 56 of the Constitution of Zimbabwe in that her domicile in Canada should be the reasonable domicile in the circumstances of the case. In the event that the jurisdictional plea fails, Defendant pleads to the merits as set out in her original plea. DEFENDANT’S CLAIM IN RECONVENTION That the relief sought be amended as follows: WHEREFORE Defendant claims in reconvention; That the issues of a decree of divorce, custody of the minor child TIYAMIKE ISABELLE MABUTO born on the 14th of October 2020, access thereto, maintenance in respect of the minor child, post-divorce spousal maintenance be dealt with in Canada. ALTERNATIVELY, and In the event of the court finding that it has jurisdiction on all issues, that the relief remain as in the original relief sought. Applicant be and is hereby ordered to file an amended plea within seven days of this order. There is no order as to costs. Maxwell J Mtetwa & Nyambirai, Applicant’s legal practitioners Messrs Coghlan, Welsh & Guest, Respondent’s legal practitioners 3 HH 123 - 25 HCH 579/24 3 HH 123 - 25 HCH 579/24 JOSEPHINE VONGAI MHISHI versus TAFADZWA SHAW MABUTO HIGH COURT OF ZIMBABWE MAXWELL J HARARE; 21 October 2024 & 3 March 2025 Opposed Matter – Amendment of Pleadings B Mtetwa with B Sitotombe, for the Applicant D Ochieng, for the MAXWELL J: Applicant and Respondent are in the process of divorcing. The divorce matter HCH 4670/22 was set down for trial on 25/3/24. At the hearing of the matter, counsel for the Applicant indicated that Applicant intends to amend her pleadings and a notice to that effect was filed. Applicant sought a postponement of the main matter for that purpose as Respondent was not consenting to the amendments. The postponement was granted pending a decision on the application for amendment of pleadings. On 25/3/24 Applicant who is the Defendant in HCH 4670/22 filed a Notice to Amend the Defendant’s Plea and Claim in Reconvention in terms of rule 41 of the High Court Rules 2021. The reasons or grounds for the amendment were given as follows: The Defendant and minor child are Canadian citizens who are domiciled and resident in Canada. The Plaintiff has residency rights in Canada and there is no reason why the divorce action cannot be heard in Canada. The parties’ minor child has special needs that make it difficult for the Defendant to travel to Zimbabwe with her without endangering her health. Defendant, who wants a physical trial, cannot travel to Zimbabwe without the minor child and cannot, in any event afford the cost of travel. Defendant, as primary care giver to the parties’ minor child, cannot hold down a full time job because of the constant hospitalization of the minor child which requires that she be with the child whenever she is in hospital and she cannot risk bringing the child to Zimbabwe due to her inability to afford medical costs. The parties have pending spousal maintenance and child support applications before the Canadian Courts and it would make sense to have all maintenance related issues heard by the court of domicile of the maintenance applications. Defendant, at the time of the filing of the plea and counter - claim was unaware of the possibility of having the maintenance, custody and spousal support issues determined by the Canadian Courts who would be in the best position to determine both maintenance claims given their knowledge of the Canadian economy. For the Canadian Court to deal with post-divorce spousal maintenance, it must also deal with the divorce decree. Defendant was unaware of this requirement when she filed her plea and counter – claim as she could not, due to financial constraints, consult a lawyer in Canada. The requirement that the husband’s domicile be the effective jurisdictional decider is, in any event, unconstitutional in that it is discriminatory and in violation of provisions of section 56 of the constitution. The Respondent filed an objection to the amendment sought. He stated three grounds on which he objected to the proposed amendment in the following words; “1. The proposal to amend is an abuse of process in that it is made malafide with the ulterior motive of vexing the Plaintiff and disrupting the ongoing trial. No satisfactory basis exists for the withdrawal of the properly made admissions that the Defendant seeks to disown. The proposed amendment to the counter-claim would render it excipiable.” On the 19/4/24 Applicant filed an application for leave to amend her pleadings. In the founding affidavit she stated that she is the Defendant in the divorce action under case number 4670/22. She also stated that there are ongoing related proceedings in Canada dealing with issues of her and the child’s maintenance currently and post-divorce. She pointed out that the Respondent is truly aware of and is participating in the proceedings in Canada. In the Opposing Affidavit, Respondent took issue with the filing of an affidavit attached to the Notice of Amendment. Rule 41(1) of SI 202 of 2021 is couched in the following terms; “41(1) Any party wishing to amend a pleading or document other than a sworn statement filed in connection with any proceedings shall notify all other parties of his or her intention to amend and shall furnish particulars of the amendment.” Applicant filed the notice to amend, a Founding Affidavit and Draft Order. In my view she provided sufficient particulars of the intended amendment. Respondent does not allege any prejudice suffered as a result of that. This was a step taken in ascertaining whether the amendment would proceed as unopposed or not. Respondent’s attitude necessitated the present application. Respondent proceeded to elaborate the grounds stated in the objection to the notice of amendment. He argued that Applicant’s papers motivate the grant of the relief that would be sought if the amendment were allocated instead of motivating a reason for granting the amendment. He further argued that these deficiencies together with untruths that he would expose confirm the insincerity of the application. He pointed out that Applicant had admitted to the jurisdiction of this court and that his residency rights expired in January 2024 therefore he is no longer able to travel in and out of Canada at will. He also pointed out that Applicant had travelled to Zimbabwe with the child with special needs on a number of occasions. He disputed that a flight to Harare is a danger to the minor child’s health and stated that in any event Applicant can testify virtually. He also pointed out that the child’s medical costs are covered by his medical aid. Respondent disputed that financial constraints are a factor for Applicant. He indicated that at the Pre-Trial Conference, Applicant asked for a physical hearing in Zimbabwe. He admitted that if the divorce was to proceed and be finalised in Zimbabwe, a party is unlikely to be able to make a claim in the Ontario Courts for spousal support. The granting or refusal of an application to amend pleadings is a matter for the discretion of the court. In Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 it is stated: “It is paramount that the discretion reposed in the court in respect of amendments be exercised in a manner which allows the issues between the parties to be fairly tried. The fact that the amendment might lead to the defeat of the other party is not the kind of prejudice which should weigh with the Court: GMF Kontrakters (Edms) Bpk & Anor v Pretoria City Council 1978(2) SA 219 (T) @ 222 C – F.” See also Mashonaland Turf Club v Susan Peters & Anor HH 7/21. In UDC Ltd v Shamva Flora (Pvt) 2000 (2) ZLR 210, it is stated that the approach of our courts has been to allow amendments to pleadings quite liberally in order to avoid any exercise that may lead to a wrong decision and also to ensure that the real issue between the parties may be fairly tried. In Ncube v Dube & Others HB 106/4 it is stated that the court has such a discretion to allow a litigant to amend his or her pleadings at any time prior to judgment. In casu the application for leave to amend pleadings came before the commencement of the trial, even though it was on the date the matter was scheduled to commence. Respondent has argued that the amendment sought if allowed would render the plea excipiable. The present proceedings are not for the purpose of determining whether or not the plea as amended has merit. Whether or not the plea is excipiable, in my view, is a decision that can be made after the amendment has been allowed. Respondent further argued that the granting of leave to amend would result in the case returning to the pleadings stage. In my view that is an eventuality that the rules allow since pleadings can be amended at any stage of the proceedings. I am not persuaded that any basis has been laid for this Court to depart from the usual norm of liberally allowing amendments to pleadings, moreso in the context of matrimonial proceedings. The application therefore succeeds. The following order is made: The Applicant’s plea be amended as follows: By the deletion of para 1 and the substitution thereof with the following paragraphs 1. Ad paragraph 1 – 2 As in original plea 1.1. Ad paragraph 3 This is denied and Plaintiff is put to the strict proof of his claims. Plaintiff, who has residency rights in Canada, is also domiciled in Canada where Defendant and the minor child of the marriage are domiciled. It is fair, reasonable, cost effective and equitable that all aspects of the divorce, save for the propriety aspects, be dealt with in Canada. 1.2 Defendant further pleads that the requirement that the man’s domicile be used is unconstitutional and in violation of s 56 of the Constitution of Zimbabwe in that her domicile in Canada should be the reasonable domicile in the circumstances of the case. In the event that the jurisdictional plea fails, Defendant pleads to the merits as set out in her original plea. DEFENDANT’S CLAIM IN RECONVENTION That the relief sought be amended as follows: WHEREFORE Defendant claims in reconvention; That the issues of a decree of divorce, custody of the minor child TIYAMIKE ISABELLE MABUTO born on the 14th of October 2020, access thereto, maintenance in respect of the minor child, post-divorce spousal maintenance be dealt with in Canada. ALTERNATIVELY, and In the event of the court finding that it has jurisdiction on all issues, that the relief remain as in the original relief sought. Applicant be and is hereby ordered to file an amended plea within seven days of this order. There is no order as to costs. Maxwell J Mtetwa & Nyambirai, Applicant’s legal practitioners Messrs Coghlan, Welsh & Guest, Respondent’s legal practitioners