BY CHARLES LAITON
High Court judge Justice Christopher Dube-Banda has described the use of the military by Vice-President Constantino Chiwenga in kicking out his estranged wife, Marry (pictured), from the couple’s matrimonial home, as a threat to the rule of law.
Justice Dube-Banda further castigated the VP for failing to uphold the country’s Constitution despite the fact that he swore to uphold the supreme law of the land when he took the oath of office.
The judge also said while Chiwenga might not have wanted to stay with Marry at Number 614 Nick Price Drive, Borrowdale Brooke, Harare, he had no right to bar her from accessing the property in the absence of a court order.
“The conduct of the respondent [Chiwenga] has the potential to render the applicant [Marry] destitute, frustrate her compliance with bail conditions and place her in serious jeopardy and bring the standing of the status of the rule of law in Zimbabwe into serious disrepute. It must not be forgotten that the respondent is no ordinary citizen, and his conduct is particularly objectionable as he has taken the oath to uphold the laws of Zimbabwe,” Justice Dube-Banda said in his judgement which granted Marry authority to stay at the Borrowdale house.
“…it is significant to make the point that one of the crucial elements of the Constitution of Zimbabwe Amendment [No 20] Act 2013 is to make a decisive break from the normalisation of abuse of State power that preceded this Constitution. To achieve this goal, the principles of accountability, the rule of law and the supremacy of the Constitution have been constitutionalised. …in terms of the rule of law, government and its officials and agents as well as individuals and private persons are accountable under the same law.”
Meanwhile, Chiwenga has since filed an appeal against Justice Dube-Banda’s judgement accusing him of having failed to properly deal with the matter.
“The respondent [Marry-in the appeal matter] having pleaded and sought relief on the basis of a prima facie right on a cause of action that requires a clear right, namely spoliation, the court a quo erred and misdirected itself in granting final mandatory and interdictory relief,” he said.
“The court a quo erred and misdirected itself on the facts and evidence in holding that the respondent had been despoiled. The court a quo erred and misdirected itself in granting more than one relief,” Chiwenga said, adding: “The court a quo erred, a fortiori in holding that the matter was urgent. As regards the children, the court a quo erred and misdirected itself in finding that the respondent had been unlawfully dispossessed of the children.”
Chiwenga said he was urging the Supreme Court to rule in his favour and hold that Marry’s “matter is not urgent and is hereby struck off the roll with costs. Alternatively, in the result the application is hereby dismissed with costs”.
Ironically, in the just-ended High Court matter, Marry’s lawyer Beatrice Mtetwa, urged the High Court not to entertain any application filed by Chiwenga on the basis that he was approaching the courts with dirty hands.
The ruling against Chiwenga came about after Marry was denied access to the matrimonial home soon after her release from prison on $50 000 bail following her detention on charges of externalisation, attempted murder and money laundering.
Soon after being released from prison, Marry arrived home on January 6, 2020 only to discover that the residence had been cordoned off by soldiers from the Presidential Guard who denied her access to the property.
Justice Dube-Banda castigated the move taken by the VP, saying he ought to have respected the rule of law rather than take the law into his own hands.
“To my mind, she may move out of such a home either by her consent or after the conclusion of the due process. She cannot be refused entrance to the matrimonial home by the members of the military. In fact, it is unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute,” Justice Dube-Banda said, adding: “This is frightening and undermines the values inherent in our Constitution, which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance…”
It was Chiwenga’s argument that he could not allow Marry to reside at the matrimonial home given that she attempted to kill him and also that the house was of sentimental value to him. But Justice Dube-Banda ruled in Marry’s favour, saying Chiwenga had simply flouted the law.
“To ascertain whether spoliation has occurred, it is irrelevant in this inquiry in whose name the property is registered. The fact that applicant (Marry) was in prison from December 14, 2019 to January 6, 2020 does not take away the fact that she was unlawfully dispossessed of the property. It is not necessary for the applicant to show continuous physical presence at the property. As long as she proves intention of securing a benefit from the property, it is sufficient,” he said.
“…My view is that an act of spoliation was committed against the applicant on January 6, 2020 when she was denied or refused entry into the property.
Respondent [Chiwenga] has no defence to this act of spoliation. The property might be registered in his name, it might be of sentimental value to him, and he might have no other home, however all these do not amount to a defence in a case of spoliation. Mandament van spolie is a possessory remedy. Ownership does not come into the enquiry.”
The court also interdicted Chiwenga from barring Marry to access her business at Orchid Gardens, Domboshava, accessing or possessing her clothes and further interdicted him from barring Marry from using all the vehicles she claimed the VP had seized from her.