Mashudu Netsianda, Senior Court Reporter
A HIGH Court judge has blasted the increasing tendency to use unscrupulous methods by what he termed “bush lawyers” to trick the court into fraudulently granting orders in favour of their clients.
Bulawayo High Court judge Justice Nicholas Mathonsi said this in a hearing in which Khumbulani Jubane, a United Kingdom-based Bulawayo man, was granted divorce in an unprocedural manner against his wife of 17 years.
Jubane had been taken to court by his ex-wife Thandazile (nee Khumalo) in a dispute over the custody of their five-year-old daughter.
Khumalo, who is also based in the UK, filed an urgent chamber application at the Bulawayo High Court seeking an order suspending the awarding of custody of her daughter to Jubane.
In papers before the court, Jubane was cited as the respondent.
Jubane clandestinely obtained a default judgment on July 16, 2015, to take custody of his daughter after secretly divorcing his wife without the woman’s knowledge.
Prior to the divorce, Jubane and Khumalo were on separation.
Justice Mathonsi ruled in favour of Khumalo.
He blasted Jubane and his lawyer for tricking the court into granting him divorce under case number HC2187/14 after abusing the procedure for substituted service of summons by claiming that he had no knowledge of his wife’s whereabouts.
“The marriage subsisted until it was terminated on July 16, 2015, in HC2187/14, a termination induced by fraud perpetrated brazenly and indeed shamelessly in broad daylight by the respondent. He used trickery and outright falsehood to influence the court to grant him a decree of divorce and ancillary relief all titled in his favour, uncontested,” he said.
Justice Mathonsi noted that there was an increase in the number of cases of fraud in divorce proceedings, which threaten to erode confidence in the country’s judicial system in unopposed divorce matters.
“The respondent’s (Jubane) papers in that matter have all the footprints of a bush lawyer who was aware of the procedure for substituted service and was obviously wallowing in the bush because of such unprofessional and dishonest conduct. In fact, this court has in recent history been inundated with such cases where Zimbabweans in the diaspora abuse the procedure for substituted service by claiming they have no knowledge of the whereabouts of their spouses in order to avoid service of summons and to obtain quick divorces fraudulently. It is despicable,” said the judge.
“While there is nothing wrong with seeking greener pastures in the diaspora, these people must appreciate that this is a court of law which should not be subjected to abuse by unscrupulous persons who no longer know how to act honourably. It is usually the dishonourable who associate with bush lawyers.”
Justice Mathonsi said by duping the court into granting him divorce and sole custody of their daughter, Jubane demonstrated unreliability and dishonest.
“This is a person who has lied and misled this court before as a result of which he obtained a divorce order by false pretences. His story therefore has no evidentiary value and cannot be relied upon. I am satisfied that the application for rescission of judgment is meritable and therefore that the respondent cannot benefit from his ill-gotten order. The applicant has a right to sole custody until an order regulating the custody has been made,” ruled the judge.
Jubane and Khumalo married each other in Bulawayo on July 13 in 2001 in terms of Chapter 5:11 of the Marriages Act. During the subsistence of their marriage, the parties were blessed with three children. The custody of their last born formed the basis of Khumalo’s application.
Khumalo and Jubane acquired immovable properties both in Zimbabwe and the UK.
The two, who are now both British citizens, had marital problems after Jubane started having an extra marital affair with a Jamaican woman resulting in a separation.
Jubane regularly brought their last born to Zimbabwe until he decided to enrol her at a local school without the knowledge of her mother.
Khumalo only learnt about the divorce after she had visited the country intending to collect their daughter. She also discovered that Jubane had been granted sole custody of their daughter which subsequently prompted her to challenge the order.