Marry barred from children, home
VICE PRESIDENT Constantino Chiwenga’s estranged wife, Marry, has been barred from accessing their children, cars and property — including their plush Borrowdale home — after the Supreme Court yesterday set aside a provisional order she had attained from the High Court.
The Supreme Court bench led by deputy chief justice Elizabeth Gwaunza and two other judges, Paddington Garwe and Chinembiri Bhunu, noted how Marry’s lawyers had misled her by making an improper application in the High Court matter.
Marry was represented by Mtetwa and Nyambirai Legal Practitioners, who had applied for a provisional spoliation order — after being denied access to her matrimonial home and was not aware of her children’s whereabouts — which was granted by High Court judge Christopher Dube-Banda.
Chiwenga, through his lawyers Wilson Manase of Manase and Manase — who instructed Lewis Uriri — then challenged the position and sought reprieve from the Supreme Court.
“The respondent (Marry) unfortunately did not get the benefit of sound legal advice in order to assert her rights. Regrettably, this is the sort of case where one cannot escape the consequences of the conduct of his or her legal practitioner,” Gwaunza said.
“The respondent’s conduct in presenting an incompetent claim and her unsubstantiated attack on the appellant’s (Chiwenga) character could have justified an order for punitive costs against her.
“However, in light of the fact that she did not get appropriate legal advice and representation from her lawyers, the court takes the view that an order of costs on the higher scale would be unduly harsh.”
Gwaunza noted how Dube-Banda had grossly erred by granting Marry’s request made through an application that was unjustified at law.
“The appeal succeeds in part with costs … the appeal against the finding of the court a quo on urgency be and is hereby dismissed. The matter be and hereby struck off the roll with costs,” Gwaunza ordered.
The apex court ruled that the custody issues would only be determined on the merits after hearing of evidence.
“… for no good reason and at the instance of her lawyers, the respondent claimed custody of her children under the nonexistent and inapplicable law of provisional spoliation.
“As already stated, the learned judge in the court a quo, presumably having realised that the respondent’s claim was incompetent and a nullity at law, improperly granted her a final interdict which she had not asked for. The order cannot stand.
“The court was at fault in that it determined a matter that was not before it and without hearing argument on the question of whether or not to grant the provisional spoliation order. The question of the final interdict was supposed to be argued and determined on the return day which, however, never saw the light of day.”