REPORTABLE Z.L.R. (69)
No S.C. 82\2002
Appeal No 74\2002
JACARANDA GALANTE v EDWARD ELIO GALANTE
COURT OF ZIMBABWE
JA, CHEDA JA & GWAUNZA AJA
SEPTEMBER 5 & OCTOBER 9, 2002
for the appellant
de Bourbon SC.,
for the respondent
JA: This is an appeal against the dismissal by the High Court of
the appellants special plea in which she alleged
that the High
Court did not have the jurisdiction to hear the divorce action
instituted against her by the respondent.
background facts are as follows. The parties were married to each
other in Harare in September 1985 and two children were
born. Thereafter on 3 November 1998 the appellant (Ronnie)
instituted a claim for divorce and other relief in
the High Court
(the first divorce case). In paragraph 3 of her Declaration
she stated that the respondent (Edward)
was domiciled in
Zimbabwe. That averment was admitted by Edward in his plea filed in
first divorce case had been instituted, Ronnie filed a court
application in the High Court in January 1999 (the maintenance
application) seeking maintenance pendente
for herself and the two minor children, and a contribution towards
her costs in the first divorce action. In order to confirm the
jurisdiction of the High Court to grant her the relief which she
sought in the application, she incorporated, under oath, the contents
of her Declaration in the first divorce case, which included the
averment that Edward was domiciled in Zimbabwe.
maintenance application was heard on 25 November 1999 and Ronnie was
awarded maintenance pendente
for herself and the two minor children in the sum of $100 000,00 per
month, and a contribution towards costs in the sum of $50 000,00.
4 December 2000 a pre-trial conference for the first divorce case was
held and the case was set down for hearing on 5 December
that day, Ronnie made an application for the postponement of the
trial, but the application was dismissed. She then
first divorce case and was ordered to pay the costs which had been
incurred by Edward. She did not claim that the
High Court did not
have jurisdiction over the matter.
the withdrawal of the first divorce case, Edward issued a summons
against Ronnie claiming a decree of divorce and other
second divorce case) on 6 December 2000. In his Declaration he
averred that he was domiciled in Zimbabwe.
on 9 April 2001 Ronnie filed a Special Plea alleging that the High
Court did not have the jurisdiction to hear the
second divorce case
because Edward was not domiciled in Zimbabwe. She did not allege
any change of domicile by Edward between 3
November 1998, when she
instituted the first divorce case and averred that Edward was
domiciled in Zimbabwe, and 6 December 2000
when the second divorce
case was instituted. However, she averred that Edward had never
lost his domicile of origin, which was
the United States of America.
his reply to the Special Plea, Edward took the point that Ronnie was
estopped from raising the issue of his domicile, bearing
in mind her
averments concerning his domicile in the first divorce case and the
the Special Plea was set down for hearing on 6 December 2001. On
that day, the learned judge heard argument on the
which was taken by Edward. The point was that Ronnie was estopped
from denying that Edward was domiciled in Zimbabwe. The point
was subsequently upheld by the learned judge in the court a
and the Special Plea was dismissed with costs. Aggrieved by that
decision, the appellant appealed to this Court.
hearing of the appeal Mr de
who appeared for the respondent, informed the Court as follows:
trial in the second divorce case commenced on 22 July 2002 and was
completed on 26 July 2002. The jurisdiction of the High
not in issue.
witness to give evidence was Edward. In his evidence, Edward
stated that he was domiciled in Zimbabwe. That evidence
challenged by Mr Morris
who appeared for Ronnie.
the end of the trial, the trial judge granted Edward a decree of
divorce, but reserved his judgment in respect of all the other
matters which had been raised during the trial.
I did not
understand Mr Fitches,
who appeared for Ronnie, to disagree with the facts set out above.
In addition, after the appeal had been argued, a copy of the
order issued on 26 July 2002 was sent to the Registrar of this Court
by Mr de
at the request of the court. The order clearly indicates that on 26
July 2002 Mr Justice SMITH granted Edward a decree of divorce
reserved his judgment in respect of all the other matters which had
arisen during the trial.
circumstances, it was submitted by Mr de
that the appeal was an abuse of the process of this Court and ought
to be dismissed with costs because the trial in the second divorce
case had already been concluded and a decree of divorce granted. I
am in complete agreement with that submission.
Special Plea was filed because Ronnie contested Edwards claim for
a decree of divorce and other relief and, therefore, intended
preventing the hearing of the second divorce case. Now that the
trial has been concluded and a decree of divorce granted, with
decision on the remaining issues reserved, there is no justification
whatsoever for persisting with the Special Plea and the
There is no longer any reasonable prospect that Ronnie could succeed
in her defence to Edwards claim for divorce because
a decree of
divorce has already been granted. In addition, it is no longer
possible to prevent the hearing of the second divorce
the trial has already been concluded.
my view, persisting with the Special Plea and with the appeal in
these circumstances is an abuse of the process of this Court.
Court has an inherent power to prevent the abuse of its process.
As VAN DYK J
said in Soundcraft
(Pty) Ltd t/a Advanced Audio v Daan Jacobs t/a Radio Spares and TV
1982 (4) SA 685 (W) at 687H-688A:-
it is well established that our courts will be very slow to interfere
in a litigants right to ventilate his case before
nevertheless, where there is no reasonable prospect that a party can
succeed in an action or in his defence to an action, the
summarily veto the action or defence if a prosecution thereof would
constitute an abuse of its process. See, in this
Assurance Co v Caldwells Trustee
1918 AD 262 at 271 and 275 where the learned CHIEF JUSTICE pointed
out with reference to the case of Reichel
14 AC 665 that:
Court has an inherent right to prevent an abuse of its process in the
form of frivolous or vexatious litigation.
1935 CPD 269 at 276; Sussman
1951 (2) SA 226 (O) at 230C-231D; Argus
Printing & Publishing Co Ltd v Anastassiades
1954 (1) SA 72 (W) at 73-4.
views on the inherent power of the court to prevent an abuse of its
own process appear at page 1110 of the 4th
edition of Herbstein
& Van Winsen:
The Civil Practice of the Supreme Court of South Africa.
was unable to put up any valid argument as to why Ronnies conduct
should not be viewed as an abuse of the process of this Court.
However, the Court appreciated the difficult position in which he
the circumstances, the appeal is dismissed with costs.
JA: I agree
AJA: I agree
N H Franco
appellant's legal practitioners
respondent's legal practitioners