BY CHARLES LAITON
VICE-PRESIDENT Constantino Chiwenga has been ordered by the High Court to allow his estranged wife, Marry, to access the couple’s Borrowdale matrimonial home after castigating his use of the military to settle a matrimonial dispute.
The ruling against the VP came about after Marry was denied access to number 614 Nick Prince Drive, Borrowdale Brooke, Harare, and her children taken away from her soon after she was released 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 her residence had been cordoned by the military, which denied her access to the property.
High Court judge Justice Christopher Dube-Banda, however, castigated the move taken by the VP, saying he ought to have respected the rule of law rather than taking 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.
“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 … I find that applicant had discharged the onus on her of showing, on balance of probabilities, that an act of spoliation was committed against her in respect of number 614 Nick Prince Drive, Borrowdale Brooke, Harare. She has shown a real right, entitling her to find a final order of spoliation.”
Chiwenga argued that he could not allow Marry to reside at their Borrowdale Brooke mansion given that she allegedly attempted to kill him and also that the house has a sentimental value to him.
But Justice Dube-Banda ruled in Marry’s favour, saying Chiwenga had 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 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.”
Justice Dube-Banda noted said section 74 of the Constitution provides that no person may be evicted from their home without an order of the court made after considering all the relevant circumstances.
“What happened to the applicant must be a cause of fear and concern to all law-abiding citizens, wherever they are and their station life. It is in such situations that this court must step in, without fear or favour, to defend the Constitution and to defend the rule of law. There cannot be, in a constitutional democracy, a law for the powerful and a law for the weak. It is in such instances that this court must stand firm and apply the law without fear or favour,” the Judge said.
Turning to the issue of custody of the three minor children, the judge said Chiwenga had no right to seize the minors from their mother without following the due process of the law.
“… 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. The rule of law expresses the principle that all people are equal under the law, no one is above the law, and no one is below it. The courts exist to ensure that everyone is accountable to the law. The role of the courts is to protect the rights and freedoms guaranteed under the Constitution. When an individual can show that his or her rights have been violated, the courts will provide a remedy. Everyone, whatever his or her rank, is subject to the law,” he said, ordering Chiwenga to release the three minors to their mother within 24 hours of the court order.
“In the result, I order as follows: the respondent (Chiwenga) is, hereby, ordered to restore the custody of the minor children (names withheld) to the applicant within 24 hours of this order.”
The court also interdicted Chiwenga from barring Marry to access her business at Orchid Gardens in Domboshava, about 30km north of Harare, 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.
“The respondent is, hereby, interdicted and restrained from interfering with applicant’s access to, use and enjoyment of the property known as Orchid Gardens, Domboshava, Harare. The respondent is, hereby, interdicted and restrained from interfering with applicant’s access to, use and enjoyment of the motor vehicles, namely Toyota Lexus, Mercedes-Benz S400, and Mercedes-Benz E350 (black).”
Chiwenga has since lodged an appeal to the Supreme Court.