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Judgment No. HB 45/2003
Case No. HC 1689/2001
JANE PHIRI
Versus
BASIL CYPRIAN PHIRI
IN THE HIGH COURT OF ZIMBABWE
NDOU J
BULAWAYO 19 DECEMBER 2002, 16 JANUARY & 20 MARCH 2003
Ms H M Moyo for the plaintiff
Defendant in person
Civil Application
NDOU J: In this matter the plaintiff seeks a divorce with ancillary relief.
The plaintiff issued summons on 6 June 2001. The summons were served on the
defendant by the Deputy Sheriff on 13 June 2001. The defendant entered appearance
to defend on 27 June 2001. On 1 August 2001 he filed a notice of Request for Further
particulars. The plaintiff responded to the request on 12 November 2001. The
defendant did not file his plea and as a result on 14 December 2001 a Notice of
Intention to Bar was served on him. He did nothing about it. The plaintiff set down
the matter for 19 December 2002 as unopposed in the motion court. The notice of set
down was apparently served on the defendant. On 19 December 2002 he pitched and
when the matter was called he sought to make submissions. The plaintiff’s counsel
strongly objected on the basis that the defendant had been barred and, as such, could
not be heard without condonation by the court. I granted the defendant instant
condonation and briefly heard his side of the story only in connection with failure to
file the plea. As the defendant is a self actor I did this purely on the basis of policy
which dictates that the married status should as far as possible, as long as possible and
whenever possible be maintained – see Fender v St John-Mildmay [1938] AC I at 32-
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3 and The South African Law of Husband and Wife – 5th Ed by HR Hahlo at page 418.
The task of a party who seeks to have a marriage dissolved is not a light one. In
Kanatopsky v Kanatopsky 1935 EDL 308 at 309 GUTSCHE J remarked:
“Because of its far reaching consequences to the contracting parties themselves, because it creates for them a status, and because for that and other reasons, the state is an interested third party, not only at the making but also at the breaking, inter vivos, of the union, and has an interest therein throughout its subsistence, the marriage contract of all personal contracts, is the least revocable or reversible.”
The court will not insist upon strict observance of the formalities but will seek
to ascertain the truth regardless of technicalities. In Exley v Exley 1952(1) SA 644(O)
at 646 HORWITZ J stated –
“… and, secondly because I bear in mind that the point is, after all, related to a matrimonial dispute when the court does not always insist upon strict formalities.”
The same learned judge dealt with the issue in Coertzen v Coertzen 1954(2)
SA 69 (OPD). In this case there was an irregularity which is more or else similar to
the one in casu. The defendant, in divorce proceedings, pitched up on the day of
hearing of an undefended action asking for leave to defend. Postponement was
granted to enable defendant to apply on petition for condonation of late entry of
appearance. The defendant did not do so, but instead merely filed an affidavit in
breach of the court order. The court held that the plaintiff was not prejudiced thereby
and granted the condonation but imposed a sanction by way of a special order as to
costs. The rationale for doing so is discernible from page 71C-G where the learned
judge stated –
“It is abundantly clear that at one stage the defendant, although he had ample opportunity to enter appearance to defend, did not do so, but, for some unexplained, or inadequately explained reason, refrained from entering appearance until the last moment when he appeared in this court and applied orally to be allowed to defend. Had this been an ordinary civil case it would
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have been advisable, if not necessary for the court to take this delay into very serious consideration in the present application for condonation. But I am bearing in mind that this is a divorce case in whom the status of the parties is involved and that, therefore, in view of the fact that the defendant has a defence – and from the papers we must assume that it is a bona fide defence – the court should not by its order prevent him placing that defence before it …
In the case of Fillis v Fillis, 1908 CTR 357 BUCHANAN ACJ, said that – “in all matrimonial cases the court will hear the defendant if he is present.
If that statement be correct, then it would mean that if the court could have heard him when he was present on 17 December last, the court can also now grant him opportunity to place his defence formally before the court. The other case to which I wish to refer is Edwards v Edwards, 1912 WLD 80 … the learned judge who presided pointed out that this was a case affecting the status of the parties, and, even though at that stage there was already an order against the wife, leave to defend would be granted.”
See also Haddow v Haddow 1974(2) SA 181 (R)
Another issue relevant to the facts is whether the court can deal with the
decree of divorce and the custody first and refer the after issues for trial. This
approach would be consistent with a request by the defendant as he is consenting to
these two. I go along the view that it is desirable that the marital problems be
adjudicated upon in one and the same action – Henderson Tuder 1965(4) SA 227 (SR)
and Eorfino v De Pretto (Eorfino Intervening) 1959(3) SA WLD 787. Although the
facts of these cases dealt with slightly different scenarios, I think the rationale of the
approach applies to this case. I therefore hold that all the matrimonial issues should
be within the same trial.
In line with the principle of the sanctity of the marriage status in the
above-mentioned cases, I am prepared to condone the behaviour of the self-acting
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defendant and allow him to have his case heard. I will not insist upon strict
observance of the formalities but seek to ascertain the truth regardless of
technicalities. To prevent the possible prejudice being suffered by the plaintiff, I will
order that the defendant bears the costs for this application instead of committal for
contempt as suggested in Haddow v Haddow (supra). In this case, it is beyond
dispute that the defendant was out of the country. But when he went to live in Zambia
he was aware that this matter had commenced. He had already participated in the
litigation. He should have taken steps to ensure that his wife is not affected by the
departure.
In order to cut down on costs and prevent prejudice to the plaintiff I direct that
the defendant’s opposing papers be regarded as his plea and subsequent pleadings will
proceed from that stage.
I accordingly, refer this matter for trial with the defendant’s opposing affidavit
being regarded as his plea. The defendant will bear the costs of this application.
Joel Pincus, Konson & Wolhuter plaintiff’s legal practitioners