Constantine Guveya Chiwega v Jocelyn Mauchaza Chiwega

### Preamble
1
HH
441-2012
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CONSTANTINE GUVEYA CHIWENGA

versus

JOYCELYN MAUCHAZA CHIWENGA

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE 1st October,  31 October, 14 November and 21 November 2012

Manasa, for the Plaintiff

Mpofu, for the Defendant.

Pre-trial Conference

BHUNU J: The parties are apparently engaged in bitter acrimonious divorce proceedings. On 01 October 2012 they appeared before me for a pre-trial conference in terms of the rules of Court. At that hearing counsel for the plaintiff mooted the need to separate the divorce proceedings from the division of property issues. As this was a novel suggestion to me I queried whether it was legally competent to determine the two issues separately. Mr. Fitches counsel for the plaintiff stated that this was possible on the basis of the precident set out in the case of Chivhiya v Chivhiya for which he did not have the citation.

At that juncture Mr. Mpofu counsel for the defendant interjected saying that the matter was not ready for a pre-trial conference because pleadings had not yet closed. There was need for him to serve summons on Mary Mubaiwa who had been named in the summons as having committed adultery with the plaintiff. Rule 273 (1) makes it mandatory for her to be served with the summons unless the Court is satisfied that there are compelling reasons why she cannot be served.

It was his submission that marital misconduct was a vital consideration in the distribution of matrimonial property. He had unfortunately failed to effect service on her because she was out of the country. She was however, expected back in the country the following week whereupon he would effect service.

He further argued that there could be no closure of pleadings because the plaintiff was yet to supply the defence with vital information relating to the details of shareholding and properties owned by companies  listed on annexure ‘A’ to the summons.

He also complained that it was improper for Mr. Kewada to represent the plaintiff as an instructing attorney for the plaintiff because he had previously drafted the defendant’s will and the family trust.

As regards the separation of divorce issues from division of matrimonial property issues he pointed out that this was improper because in the event of death intervening after divorce but before distribution of the matrimonial estate there were bound to be complications.

At the closure of argument it was not disputed that Mary Mubaiwa the alleged adulteress had not been served with summons in terms of the mandatory provisions of the law. It was also not disputed that the plaintiff was yet to provide the vital information relating to relevant companies’ shareholding and property owned. I was therefore persuaded by Mr. Mpofu’s cogent argument to the effect that it was premature if not illegal to hold a pre-trial conference before the closure of pleadings. In the result I made the following procedural order by consent of the parties:

That the plaintiff be and is hereby ordered to furnish the defendant with details of the shareholding and properties owned by companies listed on annexure ‘A’ to the summons by 4 October 2012.

That the defendant be and is hereby ordered to serve Mary Mubaiwa with summons by 15 October 2012.

That the defendant be and is hereby ordered to file her replication by 18 October 2012.

The aborted pre-trial conference was reconvened on 31 October 2012. At that hearing the plaintiff was now represented by Mr. Manase and Mr. Pasipanodya with Mr. Fitches sitting in for an observation brief. Unlike at the initial hearing the new lawyers went straight for a formal application for a separation of divorce proceedings from the division of matrimonial property issues. The application was premised on the decision of HLATSHWAYO J in the recent case of Chombo v Chombo HC 4404 /12. In that case Mr. Mpofu now on the opposing side, successfully argued that in a divorce case, divorce issues can properly be determined separately from division of matrimonial property issues. Confronted with the prospect of arguing against his previous submissions in the Chombo Case supra, Mr. Mpofu refused to address me on the merits and decided to fasten onto a rather bogus technicality. He alleged without any foundation that I was now Functos officio as I had already determined the issue in his favour by dismissing the plaintiff’s application for a separation of the issues.

He became agitated and angry with me when I honestly pointed out to him that I had in fact made no such determination dismissing the plaintiff’s application for separation of issues. In refusing to deal with the merits he intimated that the dispute was now between him and me and he was now going to take the dispute elsewhere for redress in the best interest of his client. I must confess that his attitude in this respect took me by complete surprise as I have always considered him to be one of the few brilliant youngsters endowed with a rare high legal acumen. Judges are however made of sterner stuff. They are sworn to do justice without fear or favour. They cannot be intimidated by such idle threats.

It is self evident that no pre-trial conference on the merits took place on the 01 October 2012. The intended pre- trial conference was aborted before it could start at the defendant’s instance and special request. I obliged and granted my indulgence at both parties’ behest.  It is therefore ridiculous and the height of folly for Mr. Mpofu to suggest that I could have made a binding determination on the merits at a nonexistent pre-trial conference. It is clear that Mr. Mpofu’s attempt to convert my query regarding the propriety of separating divorce issues from proprietary issues into a judicial order is grossly misplaced and as such it cannot succeed.

He is clearly snatching at a query I raised during the course of general discussions in order to gain an unfair advantage. That type of conduct is contrary to the spirit and letter of pre-trial conference proceedings. The query I raised was never intended to be a binding order one way or the other. Had I intended to make a binding judicial order I would certainly have reduced it to writing just as I did with the above procedural order. This I did not do signifying that I did not make any binding order in this respect as alleged by Mr. Mpofu.

The objection on the ground that I am now functos officio is accordingly dismissed with costs to be costs in the cause.

Manase and Manase, the Plaintiff’s Legal Practitioners.

Gill Godlonton and Gerrans, the Defendant’s Legal Practitioners.